Reflections on MLK, Freedom, Gore & Gonzales

Yesterday was the 20th Anniversay the Martin Luther King Jr. Holiday. A holiday that wouldn't have even come into existence if our current Vice-President Darth Dick Cheney had his way.

On that day Bill O'Reilly spent time debating whether any of our current black leaders have been able to live up to the legacy of Dr. King. He claimed that "Farrakan is a hater...Jessie Jackson is a scammer...and Al Sharpton.... is Al Sharpton". But I think a better question is -- "Is anyone living up to the example set by Dr. King"? And I think the answer to that question is "No" - with on possible exception. Al Gore.

Al delivered a blistering speach yesterday on the subject of Freedom, which was introduced by former Rep. Bob Barr - one of the most rabid partisan Republicans during the Clinton administration - who has since become a member of the ACLU and is fighting heavily against the encrouchments on Civil Liberties he sees coming from the Bush Administration.

As we begin this new year, the Executive Branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress to prevent such abuses. [Ed. Specifically 18. USC § 2511. Interception and disclosure of wire, oral, or electronic communications prohibited]

It is imperative that respect for the rule of law be restored.

It is appropriate that we make this appeal on the day our nation has set aside to honor the life and legacy of Dr. Martin Luther King, Jr., who challenged America to breathe new life into our oldest values by extending its promise to all our people.

On this particular Martin Luther King Day, it is especially important to recall that for the last several years of his life, Dr. King was illegally wiretapped-one of hundreds of thousands of Americans whose private communications were intercepted by the U.S. government during this period.

The FBI privately called King the "most dangerous and effective negro leader in the country" and vowed to "take him off his pedestal." The government even attempted to destroy his marriage and blackmail him into committing suicide.

This campaign continued until Dr. King's murder. The discovery that the FBI conducted a long-running and extensive campaign of secret electronic surveillance designed to infiltrate the inner workings of the Southern Christian Leadership Conference, and to learn the most intimate details of Dr. King's life, helped to convince Congress to enact restrictions on wiretapping.

Yet, just one month ago, Americans awoke to the shocking news that in spite of this long settled law, the Executive Branch has been secretly spying on large numbers of Americans for the last four years and eavesdropping on "large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States." The New York Times reported that the President decided to launch this massive eavesdropping program "without search warrants or any new laws that would permit such domestic intelligence collection."

A more recent New York Times report indicates that far from being a "limited" program - the NSA domestic spying has led to a massive influxing of information being fed to the FBI - enough to overwhelm and drown them into stagnation on their anti-terrorism efforts.

WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of phone and Internet traffic. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mr. Mueller asked senior administration officials about "whether the program had a proper legal foundation," but deferred to Justice Department legal opinions, the official said.

President Bush has characterized the eavesdropping program as a "vital tool" against terrorism; Vice President Dick Cheney has said it has saved "thousands of lives."

But the results of the program look very different to some officials charged with tracking terrorism in the United States. More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.

"We'd chase a number, find it's a schoolteacher with no indication they've ever been involved in international terrorism - case closed," said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

In response to the F.B.I. complaints, the N.S.A. eventually began ranking its tips on a three-point scale, with 3 being the highest priority and 1 the lowest, the officials said. Some tips were considered so hot that they were carried by hand to top F.B.I. officials. But in bureau field offices, the N.S.A. material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more "calls to Pizza Hut," one official, who supervised field agents, said.

So not only are we not just looking at people with "al-Qaeda" links, it appears that the NSA information is being used to spark the tapping of completely domestic calls of completely innocent people. Following Gore's speech, Attorney General Alberto Gonzales appeared on both Hannity & colmes as well as Larry King to perform a bit of CPR on the Administrations legitamacy.

ALBERT GONZALES, ATTORNEY GENERAL OF THE UNITED STATES: Well, I didn't see the speech of the former vice president. What I can say is that this program from its inception has been carefully reviewed by lawyers throughout the administration, people who are experienced in this area of the law, experienced regarding this technology and we believe the president does have legal authorities to authorize this program.

I would say that with respect to comments by the former vice president it's my understanding that during the Clinton administration there was activity regarding the physical searches without warrants, Aldrich Ames as an example.

Here Gonzales admits he doesn't even know what Gore said - but continues to claim what the President is doing is legal, while at the same time attempting to undermine Gore's credibility by claiming "they did it too". But that is false. Clinton did not violate FISA, as phyisical searches were not included under the FISA law at the time, but they are now as a result of President Clinton's urging 1995 - and even they weren't, Bush isn't accused of doing warrantless phyisical searches in the first place. This is apples and pomagranites.

On the issue of the legality of the NSA program, Gonzales may not have listened to Gore - but it appears that Gore has been listening to Gonzales.

The President's men have minced words about America's laws. The Attorney General openly conceded that the "kind of surveillance" we now know they have been conducting requires a court order unless authorized by statute. The Foreign Intelligence Surveillance Act self-evidently does not authorize what the NSA has been doing, and no one inside or outside the Administration claims that it does. Incredibly, the Administration claims instead that the surveillance was implicitly authorized when Congress voted to use force against those who attacked us on September 11th.

This argument just does not hold any water. Without getting into the legal intricacies, it faces a number of embarrassing facts. First, another admission by the Attorney General: he concedes that the Administration knew that the NSA project was prohibited by existing law and that they consulted with some members of Congress about changing the statute. Gonzalez says that they were told this probably would not be possible. So how can they now argue that the Authorization for the Use of Military Force somehow implicitly authorized it all along? Second, when the Authorization was being debated, the Administration did in fact seek to have language inserted in it that would have authorized them to use military force domestically - and the Congress did not agree. Senator Ted Stevens and Representative Jim McGovern, among others, made statements during the Authorization debate clearly restating that that Authorization did not operate domestically.

When President Bush failed to convince Congress to give him all the power he wanted when they passed the AUMF, he secretly assumed that power anyway, as if congressional authorization was a useless bother. But as Justice Frankfurter once wrote: "To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress."

This is precisely the "disrespect" for the law that the Supreme Court struck down in the steel seizure [Youngstown Co. V Sawyer] case.

In Youngstown, President Truman argued that his Article II Commander-in-Chief powers allowed him to seize control of the steel mills during the Korean War to avoid a worker strike -- the Supreme Court found otherwise, yet Alberto Gonzales and the Justice Department have ignored this fact in order to give justification to President Bush's bypass of the FISA court. The court found in Youngstown that...

2. The Executive Order [to seize the mills] was not authorized by the Constitution or laws of the United States; and it cannot stand. Pp. 585-589.

(a) There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here. Pp. 585-586.

(b) In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. P. 586.

(c) Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution. Pp. 587-589.

(d) The Order cannot properly be sustained as an exercise of the President's military power as commander in Chief of the Armed Forces. P. 587.

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Gore continues...

Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?

The Dean of Yale Law School, Harold Koh, said after analyzing the Executive Branch's claims of these previously unrecognized powers: "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution."

For example, after appearing to support legislation sponsored by John McCain to stop the continuation of torture, the President declared in the act of signing the bill that he reserved the right not to comply with it.

Similarly, the Executive Branch claimed that it could unilaterally imprison American citizens without giving them access to review by any tribunal. The Supreme Court disagreed [Hamdi v. Rumsfeld], but the President engaged in legal maneuvers designed to prevent the Court from providing meaningful content to the rights of its citizens.

In the end Gore called for an immediate Special Counsel to look into violations of law by President Bush, yet Gonzales argued that "many attorney's" with the Justice looked over the FISA issue, but it appears that not all of them agreed.

With Mr. Ashcroft recuperating from gall bladder surgery in March 2004, his deputy, James B. Comey, who was then acting as attorney general, was unwilling to give his certification to crucial aspects of the classified program, as required under the procedures set up by the White House. . .

With Gonzales as AG, it is quite unlikely that a true investigation of the NSA wiretaping will take place, but that doesn't mean the story is over.

Rep. John Conyers (a black leader who has followed very much in the path of Dr. King) has called for a Congressional investigation [one which is unlikely with the Congress remains corrupt under Republican Control], but there is hope that the issue will be addressed - eventually - by the Padilla case. In the meanwhile, we need to focus on the TRUTH of what Gore has stated, and continue to pound home these issues - we must continue to speak out, and demand that our elected representatives - both Republican and Democrat - speak the truth, or else face being unelected. Dr. King spoke of having a dream, I believe that dream is still alive - we can not afford to let it die.

But Dr. King did not accomplish his goals alone - his primary role was in awakening the simple common decency of those who were witnesses to him. He was not perfect, he was not without flaw -- but he did inspire us to at least try to do better, and to be more than we were at the time. We can still be more, we can still do better - and we don't need to sit around and wait for Dr. King Mark II to arrive -- we need to stand up and do it own our own, just as he did.

Now, if we can just get past Diebold...

Vyan

Bush Administration creating Enemies List

Crossposted on Dailykos.

As you look at the recent revelation that Bush authorized illegal wiretaps prior to 9-11 - a picture slowly emerges which just might explain at least one reason why obtaining a FISA warrant even 72 Hours after the fact wasn't good enough for this President - and just who it was they were really spying on.

Ok so let's walk through this according to Truthout.org -

What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.

But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration...

So prior to 9-11 the NSA had a list of U.S. Citizens who've been flagged by Echelon as possibly making statements or having communications with persons who've made anti-American and/or pro-terrorist statements. And apparently some members of the Bush Administration (like say - John Bolton) have access to this information.

Then 9-11 happens and Bush says he wants the FBI to have this list -- and the NSA said "No!".

The NSA's domestic surveillance activities that began in early 2001 reached a boiling point shortly after 9/11, when senior administration officials and top intelligence officials asked the NSA to share that data with other intelligence officials who worked for the FBI and the CIA to hunt down terrorists that might be in the United States. However the NSA, on advice from its lawyers, destroyed the records, fearing the agency could be subjected to lawsuits by American citizens identified in the agency's raw intelligence reports.

It was at this point that these "Senion Administration Officials" apparrently convinced the President to sign orders which compelled the NSA to "get with the program"... however this sequence of events tells us quite a bit about what was going on.

The list of Flagged Names which had been culled over the course of months is the issue. With the pre-Patriot Act FISA Wall in place, any of these names which had been gained from information over 72-hours old could not be shared with any other agency.

The Bush Administration has claimed that "timeliness" is at issue, but it seems that it's not an issue of FISA being too slow -- it's far more likely that the issue is retention of data. The ability to compare against that list of flagged-names,to cross check and "connect the dots" between people on their list and current pro-active intelligence data coming in from other agencies...

From Walter Pincus:

Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former administration officials said.
The NSA has turned such information over to the Defense Intelligence Agency (DIA) and to other government entities, said three current and former senior administration officials, although it could not be determined which agencies received what types of information. Information from intercepts -- which typically includes records of telephone or e-mail communications -- would be made available by request to agencies that are allowed to have it, including the FBI, DIA, CIA and Department of Homeland Security, one former official said.

This is quite possibly how former pop singer Cat Stevens (aka Yusuf Islam) and James Moore (author of "Bush's Brain") both wound up on the No-Fly List.

But it goes much farther than that -- there was a report/blog from last month that indicates that NSA isn't just spying on "al-Qaeda" or potential sympathisers like Stevens - they spied on their own people, other government employees, journalist and members of Congress!

NSA spied on its own employees, other U.S. intelligence personnel, and their journalist and congressional contacts. WMR has learned that the National Security Agency (NSA), on the orders of the Bush administration, eavesdropped on the private conversations and e-mail of its own employees, employees of other U.S. intelligence agencies -- including the CIA and DIA -- and their contacts in the media, Congress, and oversight agencies and offices.

The journalist surveillance program, code named "Firstfruits," was part of a Director of Central Intelligence (DCI) program that was maintained at least until October 2004 and was authorized by then-DCI Porter Goss. Firstfruits was authorized as part of a DCI "Countering Denial and Deception" program responsible to an entity known as the Foreign Denial and Deception Committee (FDDC). Since the intelligence community's reorganization, the DCI has been replaced by the Director of National Intelligence headed by John Negroponte and his deputy, former NSA director Gen. Michael Hayden.

...

In addition, beginning in 2001 but before the 9-11 attacks, NSA began to target anyone in the U.S. intelligence community who was deemed a "disgruntled employee." According to NSA sources, this surveillance was a violation of United States Signals Intelligence Directive (USSID) 18 and the Foreign Intelligence Surveillance Act of 1978. The surveillance of U.S. intelligence personnel by other intelligence personnel in the United States and abroad was conducted without any warrants from the Foreign Intelligence Surveillance Court. The targeted U.S. intelligence agency personnel included those who made contact with members of the media, including the journalists targeted by Firstfruits, as well as members of Congress, Inspectors General, and other oversight agencies. Those discovered to have spoken to journalists and oversight personnel were subjected to sudden clearance revocation and termination as "security risks."

This revelation puts the lie to Bush's claims that this surveillance only included phone calls from al-Qaeda into the U.S., clearly it goes much deeper than that - and very close to the creation of a Domestic ENEMIES LIST by the Administration.

And the real question is... once your name has been flagged by a "Special Access" Program like Echelon (which requires more than a Top-Secret Clearance in order to view) how exactly are mistakes corrected and inappropriate names removed from the list?

When, if ever, are any of these people going to clear there name?

Vyan

Gov Warner seeks DNA for executed man

The Washington Post has the story of Gov Mark Warner ordering a DNA Test for a man, Roger K. Coleman, who has already been put to death via execution.

Since 1973 when the Death Penalty was re-established after being briefly repealed by the Supreme Court, the Innocence Project has used DNA to exonerate 172 condemnded individuals.

A similar finding in this case, that this man was wrongly executed could be a major blow to the legitimacy of Capital Punishment in America (which happens to be the last industrialized nation in the Western World to continue the practice).

Roger K. Coleman for years said he was innocent. (Steve Helber - AP)

Virginia Gov. Mark R. Warner has ordered DNA testing that could prove the guilt or innocence of a man executed in 1992, marking the first time a governor has asked for genetic testing of someone put to death.

The analysis, which began last month, comes in the case of Roger K. Coleman, a convicted killer whose proclamations of innocence -- including on the night of his execution -- raised concern nationwide over whether the wrong man died in the electric chair.

Warner's decision marks a dramatic turnaround in Virginia, where officials and judges have routinely refused to reexamine evidence in criminal cases after a defendant's conviction and have been steadfast in their denials of post-execution requests. Results of the Coleman tests, which are being conducted by scientists in a Toronto laboratory, could be announced before Warner (D) leaves office next week.

"This is an extraordinarily unique circumstance, where technology has advanced significantly and can be applied in the case of someone who consistently maintained his innocence until execution," Warner said yesterday in a statement. "I believe we must always follow the available facts to a more complete picture of guilt or innocence."

If Coleman were exonerated, it would be the first time in the United States that an executed man is cleared through genetic tests.

Ira Robbins, an American University criminal law professor, said that if Coleman was innocent, it would sway many Americans who are unsure about capital punishment to oppose it. But even if the tests confirm that Coleman was a killer, he said, it could spark a movement nationwide to test more old cases.

"It could be the biggest turning point in death penalty abolition," Robbins said. "Let's assume it comes back that he was proved innocent. Here is the case that the death penalty opponents have been looking for for a long time -- that we have executed an innocent person."

Update: BBC News reports that the test was Positive for guilt.

DNA tests have confirmed the guilt of a man who was executed in the US in 1992 whilst proclaiming his innocence.

Virginia state's outgoing governor, Mark Warner, had ordered the tests on Roger Coleman, who was put to death for raping and murdering his sister-in-law.

Anti-death penalty advocates had hoped this would be the first case of DNA testing exonerating an executed man.

The test results are a blow to those who supported Coleman and to the anti-death penalty movement in general.

A forensic laboratory in Toronto concluded there was virtually no doubt that the DNA recovered from the body of the victim, Wanda McCoy, belonged to Coleman.

Vyan

Bush illegally spied on Americans prior to 9-11

Contrary to the Bush Administrations claims that they were granted the authority to conduct warrantless wiretaps of U.S. Citizens as a result of the 9-11 and the Authorization to Use Force in Afghanistan against al-Qaeda, Truthout reveals today that Bush performed domestic spying against U.S. Citizens long before September 11th, 2001.

The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.

The NSA's vast data-mining activities began shortly after Bush was sworn in as president and the document contradicts his assertion that the 9/11 attacks prompted him to take the unprecedented step of signing a secret executive order authorizing the NSA to monitor a select number of American citizens thought to have ties to terrorist groups.

In its "Transition 2001" report, the NSA said that the ever-changing world of global communication means that "American communication and targeted adversary communication will coexist."

"Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws," the document says.

However, it adds that "senior leadership must understand that the NSA's mission will demand a 'powerful, permanent presence' on global telecommunications networks that host both 'protected' communications of Americans and the communications of adversaries the agency wants to target."

What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.

But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.

Ok, so the point here is that the way the systems like Echelon are setup, they are always monitoring (as was alluded to by Russell Tice) but that information regarding persons within the U.S. is typically disgarded.or redacted.(As was the case with the NSA intercepts reviewed by John Bolton, until he requested and was granted access to the identities of U.S. citizens mentioned in the intercepts) Prior to 9-11 NSA did generally follow this procedure.

The NSA's domestic surveillance activities that began in early 2001 reached a boiling point shortly after 9/11, when senior administration officials and top intelligence officials asked the NSA to share that data with other intelligence officials who worked for the FBI and the CIA to hunt down terrorists that might be in the United States. However the NSA, on advice from its lawyers, destroyed the records, fearing the agency could be subjected to lawsuits by American citizens identified in the agency's raw intelligence reports.

Eavesdropping on Americans required intelligence officials to obtain a surveillance warrant from a special court and show probable cause that the person they wanted to monitor was communicating with suspected terrorists overseas. But Bush said that the process for obtaining such warrants under the 1978 Federal Intelligence Surveillance Act was, at times, "cumbersome."

In a December 22, letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."

However, what remains murky about that line of reasoning is that after 9/11, former Attorney General John Ashcroft undertook a full-fledged lobbying campaign to loosen the rules and the laws governing FISA [aka the Patriot Act] to make it easier for the intelligence community to obtain warrants for wiretaps to spy on Americans who might have ties to terrorists. Since the legislative change, more than 4,000 surveillance warrants have been approved by the FISA court, leading many to wonder why Bush selectively chose to bypass the court for what he said were a select number of individuals.

In addition to this revelation it appears that President Clinton has completely debunked the allegation that he ordered domestic spying in violation of FISA during his 2 terms as Commander in Chief.

Former President Clinton said Thursday that he never ordered wiretaps of American citizens without obtaining a court order, as President Bush has acknowledged he has done.

Clinton, in an interview broadcast Thursday on the ABC News program ''Nightline,'' said his administration either received court approval before authorizing a wiretap or went to court within three days after to get permission, as required by law.

''We either went there and asked for the approval or, if there was an emergency and we had to do it beforehand, then we filed within three days afterward and gave them a chance to second guess it,'' Clinton told ABC. link

When it comes down to it, the core of this spying scandal is actually a difference in interpretation of NSA legal duty between attorneys and employees (like Tice) at NSA who themselves feel that FISA should prevail and the Bush Administration who contend that FISA is unneccesary under the Presidents Article II powers -- however the question I have is why not go the extra mile and get the FISA warrants simply to protect the government from liability and protect any possible criminal cases from "fruit of the poison tree" contamination?

This dispute is what makes the Alito Nomination critically important - as his own stated views (at least those that he would admit too) of the "Unitary Executive" would tend to trump the NSA, regardless of precedents such as Hamdi where the famous "President doesn't receive a blank check" quote comes from.

A blank check and a rubber stamp to violate the civil rights of American citizens is exactly what this potential Justice would give the President.

Vyan

Graham's Gambit - will it backfire?

Crossposted on Truth 2 Power

Yesterday's crying jag by Mrs. Alito may have been the highlight of the hearings, but the truth is that Sen. Lindsay Graham was not only trying to rehabilitate Judge Alito from his delicate four-way position straddle on CAP.

He doesn't remember joining the organization, except maybe he does - but that was because of the ROTC at Princeton, although that issue had been resolved 12 years previously - and he just might have been trying to impress Ed Meese with his references and would never support any of the anti-female, anti-minority, anti-handicapped positions of CAP, but then again he would never lie just to get a job, except for that one time with the Vanguard recusal thingy...

Sure, we all know Graham was attempting to shout "Bigot - bigot - bigot" in a crowded hearing chamber, make poor Mrs Alito cry and just hope every Democrat would run away screamming - but he was also up to something else.

Providing the Republicans political cover for the Jack Abramoff scandal, but will it work or will it backfire?

Transcript Courtesy of Michelle Malkin (thank's much Bitchy-poo)

GRAHAM: ...Are you really a closet bigot?

ALITO: I'm not any kind of a bigot, I'm not.

Yeah, that's right - as if any kind of half-way intelligent bigot is going to admit it in public, let alone under oath in a Senate hearing chamber and subject himself to possible criminal prosecution under U.S.C Title 18 § 242.  Um, not so much.

GRAHAM: No, sir, you're not.

Gee, Lindsay - so nice of you to concur, but if you already knew that - why'd you ask the question and then answer it yourself?

And you know why I believe that? Not because you just said it -- but that's a good enough reason,

And I'm sure Mr Senator and former Prosecutor and JAG Officer Graham has always thought "No Sir, I didn't chop down the cherry tree, honest" - was a good enough reason, too.

because you seem to be a decent, honorable man. I have got reams of quotes from people who have worked with you, African American judges -- I've lost my quotes.

And your marbles, but that's a diary for another time...

Judge Higginbotham -- I don't know where they're at. But glowing quotes about who you are, the way you've lived your life; law clerks, men and women, black and white, your colleagues who say that Sam Alito, whether I agree with him or not, is a really good man.

You know why I believe you when you say that you disavow those quotes? Because the way you have lived your life and the way you and your wife are raising your children.

Yeah, well - the Aryan Nations really do have a great youth outreach program, maybe we should just let them slide too?

Anyway, it's at this point that Lindsey finally starts to bring it home.

Let me tell you this: Guilt by association(DING!) is going to drive good men and women away from wanting to sit where you're sitting. And we're going to go through a bit of this ourselves as congressmen and senators.

You are?  Do tell.

People are going to take a fact that we got a campaign donation from somebody who's found out to be a little different than we thought they were -- and our political opponent's going to say, "Aha, I got you!"

A little different than you thought they were?  You mean like a mean-spirited ("little monkeys") two-timing scum-bag convicted felon with delusions of God-hood like say - Jack Abramoff?

And we're going to say, "Wait a minute. I didn't know that. I didn't take the money for that reason."

No, you took it because you needed to buy some shit.  Like "Duke" Cunningham who really needed to have that yatch. (Ok, technically Cunnigham owned the slip, and a Defense Contractor owned the Yatch, but you get my point)

And you know what? I'm going to believe these senators and congressmen for the most part, because that's the way we do our business. We meet people here every day. We have photos taken with people -- and sometimes you wish you didn't have your photo taken.


But that doesn't mean that you're a bad person because of that association.

Yeah, it's a good thing that Tom Delay didn't take tons of photos with Jack... oops.  Well, at least they don't have them together on Video or something, that might not look good.

Judge Alito, I am sorry that you've had to go through this. I am sorry that your family has had to sit here and listen to this.

And I'm sorry most of the country had to listen to you -- but then again, I quite afraid that most of them probably didn't pay attention and realize that Graham just admitted that the GOP Talking point about Democrats receiving money from Abramoff clients (who must be just as guilty as Abramoff himself right?) should be completely let off the hook for the association - just like Sam Alito had nothing to with CAP (except of coursse, for saying on his job application that he did).

That's right, we can all rest easy that Judge Sam Alito is "no kind of bigot" -- he's a weasling little kiss-ass suck-up toad, but he's not a bigot.

And all that Democrats (and a few Republicans here and there) who didn't take bribes from Jack Abramoff or Defense Contractors - have to do is recite Graham's own defense against "guilt by association" and they have nothing to worry about.

Vyan

Crushing Dissent

The Bush Administation and Republican Congress moves yet another giant step backward to 1984 and 1930's Germany by attempting to Crush Dissent against the administration. Diaried by Patriot Daily News Clearinghouse:

Bush wants to create the new criminal of "disruptor" who can be jailed for the crime of "disruptive behavior." A "little-noticed provision" in the latest version of the Patriot Act will empower Secret Service to charge protesters with a new crime of "disrupting major events including political conventions and the Olympics." Secret Service would also be empowered to charge persons with "breaching security" and to charge for "entering a restricted area" which is "where the President or other person protected by the Secret Service is or will be temporarily visiting." In short, be sure to stay in those wired, fenced containments or free speech zones.

Who is the "disruptor"? Bush Team history tells us the disruptor is an American citizen with the audacity to attend Bush events wearing a T-shirt that criticizes Bush; or a member of civil rights, environmental, anti-war or counter-recruiting groups who protest Bush policies; or a person who invades Bush's bubble by criticizing his policies. A disruptor is also a person who interferes in someone else's activity, such as interrupting Bush when he is speaking at a press conference or during an interview.

What are the parameters of the crime of "disruptive behavior"? The dictionary defines "disruptive" as "characterized by unrest or disorder or insubordination." The American Medical Association defines disruptive behavior as a "style of interaction" with people that interferes with patient care, and can include behavior such as "foul language; rude, loud or offensive comments; and intimidation of patients and family members."

...

Bush's war against disruptors was then elevated to surveillance, monitoring, and legal actions against disruptor organizations. The FBI conducts political surveillance and obtains intelligence filed in its database on Bush administration critics , such as civil rights groups (e.g., ACLU), antiwar protest groups (e.g., United for Peace and Justice) and environmental groups (e.g., Greenpeace).

This surveillance of American citizens exercising their constitutional rights has been done under the pretext of counterterrorism activities surrounding protests of the Iraq war and the Republican National Convention. The FBI maintains it does not have the intent to monitor political activities and that its surveillance and intelligence gathering is "intended to prevent disruptive and criminal activity at demonstrations, not to quell free speech."

Surveillance of potential disruptors then graduated to legal actions as a preemptive strike against potential disruptive behavior at public events. In addition to monitoring and surveillance of legal groups and legal activities, the FBI issued subpoenas for members to appear before grand juries based on the FBI's "intent" to prevent "disruptive convention protests." The Justice Dept. opened a criminal investigation and subpoenaed records of Internet messages posted by Bush`s critics. And, the Justice Dept. even indicted Greenpeace for a protest that was so lame the federal judge threw out the case.

[The potential explosiveness of this situation was shown months ago when John Bolton's nomination as Ambassador to the UN was completely torpedo when it was discovered that he had attempted to access NSA Intercepts of State Department employees. At the time, almost no one asked - Why is the NSA listening to U.S. State Department personnel? Maybe they should have, and maybe that's why President Bush decided to bypass Congress and grant Bolton a recess appointment so that such a question wouldn't be asked.]

Certainly, those who support the Adminstration claim that this legislation is simply intended to "maintain the peace" and prevent potential confrontational situations, yet there is already ample evidence that efforts by the Secret Service to block lawful access to public events by potential dissenters has already crossed the boundary between peacekeeping and suppression.

Even under current law, the Secret Service has participated in harassment of individuals who have appeared at taxpayer-funded forums with the President if they are perceived to disagree with the administration’s position. For example, on March 21, 2005, two Denver students were expelled from a “town hall” forum with President Bush because they had an anti-war bumper sticker on their car. [Note: They had yet to "disrupt anything"] The students had obtained tickets from their Congressman. Officials, including an official who identified himself as a Secret Service agent, told the students that the event was limited to audience members who shared the President’s views and they would have to leave, even if they had no intentions of disrupting the event. Apparently it made no difference that the topic of the forum was Social Security reform, not the war in Iraq. Similar incidents have occurred at Presidential visits throughout the country.

When you combine this potential legislation with the previous ACLU report of FBI and Joint Terrorism Task Force activities to perform surveillance on activist organizations, which has apparently been using information gained from quasi-legal NSA wiretaps, you have a toxic cocktail that smacks of COINTELPRO (where the FBI conducted illegal surveillance against political dissent for years) andMcCarthyism (a witchhunt, where blacklists of suspected communist where used to destroy people's lives and careers).

“The FBI should be investigating real terrorists, not monitoring controversial ideas,” said Ben Wizner, an ACLU staff attorney. “Americans shouldn’t have to fear that by protesting the treatment of animals or participating in non-violent civil disobedience, they will be branded as 'eco-terrorists' in FBI records.”

The ACLU said that some of the documents suggest infiltration by undercover “sources” at animal rights meetings and conferences. One highly redacted “Domestic Terrorism Operations Unit” document suggests that the FBI is using PETA’s interns for surveillance, while others describe attempts to locate and interview “several former disgruntled PETA employees.” Similarly, one cryptic e-mail kept in a Greenpeace file describes a source who “offers a unique opportunity to gain intelligence on activists who show a clear predisposition to violate the law.”

At times, the documents show aggressive attempts by the FBI to link PETA, Greenpeace and other mainstream organizations to activists associated with the Animal Liberation Front (ALF) or Earth Liberation Front (ELF), said the ACLU. PETA, in particular, is repeatedly and falsely singled out as a “front” for militant organizations although in at least one document released today the FBI appears to acknowledge that it has no evidence to back up such assertions.

“These documents show the erosion of freedom of association and speech that Americans have taken for granted and which set us apart from oppressive countries,” said Jeff Kerr, General Counsel for PETA. “McCarthyist tactics used against PETA and other groups that speak out against cruelty to animals and exploitive corporate and government practices are un-American, unconstitutional and against the interests of a healthy democracy.”

After Pop singer Cat Steven (Yusuf Islam) was detained and deported, and James Moore - author of "Bush's Brain" - found himself on the No-Fly list... the question of whether the President has simply been "listening to al-Qaeda" in order to protect us or whether he has in fact been spying on his political and idealogical rivals, as well as planning to use that information to pre-emptive restrict and curtail their rights and freedom has been answered.

And that answer is "Hell, Yes"...

Vyan

Kennedy Reaction on Daily Show

The Dailyshow made some hay out of Sen. TEd Kennedy making a sour face during the Alito Hearings.

What's Kennedy Reacting To?

Basically Kennedy was responding the Sen Sessions (R) countering Kennedy's claim that Judge Alito has never "voted in favor of a minority plaintiff". When I saw the video on the Daily Show, it just struck me as wrong - didn't make sense. There's something Kennedy knows that apparently Sessions doesn't - or won't admit. Well, I finally found it contained in the Senate Democrats Response

Today, Senator Sessions mischaracterized Judge Alito's record on racial discrimination: "Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination. I would point him to U.S. v. Kithcart. There you made it clear the Constitution does not allow police officers to racially profile black drivers. A police officer received a report that two black males in a black sports car had committed three robberies. Later, they pulled over a driver because was a black man in a black sports car.

You wrote that this violated the Fourth Amendment. You stated that the mere fact that Kithcart was black and the perpetrators had been described as two black males was plainly insufficient. And they also may want to look at your majority opinion in Brinson v. Vaughn, where you ruled that the Constitution does not allow prosecutors to exclude African-Americans from jurors."

Senator Sessions cherry-picked two cases that are not reflective of Judge Alito's overall record.
It is true that Judge Alito ruled for the defendant in Kithcart. However, Judge Alito did not reverse the defendant's' conviction but sent the case back to the trial court to give the government a second chance to prove that the stop and search were constitutional. When the case came back to Judge Alito on appeal, he upheld the search and affirmed the conviction.

So apparently Sen Sessions considers it a "favorable" result for the defendent when Alito decides to let the original trial judge make the same decision he previously made over again.. and then affirm him when he does?

In Brinson, Judge Alito ruled that a prosecutor improperly struck jurors for racial reasons. However, it is worth noting that this case was decided unanimously and the facts were egregious -- the prosecutor used 13 of 14 of his peremptory strikes to remove prospective black jurors, and the prosecutor had made a videotape advising other prosecutors how to strike blacks from jury pools. Unfortunately, Kitchart and Brinson do not resolve the very real concerns raised by his entire record.

In fact, in most cases, Judge Alito has taken positions undercutting the ability of criminal defendants to question the government's exclusion of racial minorities from juries and has narrowly construed the Fourth Amendment.

Jury Selection

In Riley v. Taylor, 277 F.3d 261 (3d Cir. 2001), Judge Alito, in his dissent from an en banc decision in a capital case, denigrated the defendant's use of statistical evidence regarding the exclusion of black jurors by comparing it to a statistical analysis of the disproportionate number of recent left-handed U.S. Presidents. The majority, which found that peremptory challenges had been used improperly against potential black jurors, criticized Judge Alito's analogy, writing, "To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants...."

In another decision involving peremptory strikes of jurors in a criminal case, Judge Alito rejected a challenge to the dismissal of five prospective jurors, three of whom were Hispanic, because they spoke Spanish. Writing for the panel and reversing the district court, Judge Alito took pains to ground his decision in the fact that the proper translation of recorded Spanish conversations was an issue in the case. Nonetheless, his reasoning would make it very easy to strike all Spanish-speaking jurors from any case with Spanish-speaking defendants where conversations in Spanish are at issue - apparently without any Equal Protection problem. Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994).

So clearly Kennedy was completely out-of-bounds to suggest that Alito's decisions have been biased against minorities. Urm, maybe not so much..

Vyan

Why Facism Grows, It's painless -- at least for a while.

Although many pundits and progressives have been blowing a blood-vessel over the NSA-Spying scandal and the President's claim of plenary powers which allow him to completely disregard Congress and the Law - this issue has yet to penetrate to the "heartland" and generate much general outrage by the general public.

An ABC News/Washington Post Poll from Jan 8th asked:

"Would you consider this wiretapping of telephone calls and e-mails without court approval as an acceptable or unacceptable way for the federal government to investigate terrorism?"

Answers - Acceptable (51%), Not Acceptable (47%), Unsure (2%)

The issue to me seems to be a matter of self-interest.

President Bush has managed to deflect much of this issue by claiming that "If al-Qaeda calls you, we want to know why". I think most people would agree with that and so far are willing let the rules slides if they receive a personal benefit from it (ie. they don't get hit by a WMD or Terrorist Attack).

It has yet to really hit the media that this wiretap information just might not be as limited as the President claims.

One NSA Whistleblower on ABCNews last night claimed that these NSA programs have the potential to affect Millions of Americans. This seems somewhat unlikely, but it has to mentioned that the potential danger here isn't limited by technology, only by our governments willingness to abuse that technology in secret.

There is growing concern that illegal taps could create a avalanche of poison fruit cases, which could lead to the release of dozens, if not hundreds of terrorist suspects currently in custody.

In the case of the Administration having the NSA do domestic spying without first getting warrants as required by FISA, the question becomes whether or not a particular defendant was identified via an illegal wiretap. If that is the case, then any subsequent surveillance of that defendant could be declared tainted as "fruit of the poisonous tree" by the Federal courts. Any investigative work that stems from an illegal warrantless surveillance can be tainted.

And lastly there is the issue that this (illegally gathered) NSA information is being widely shared with the Pentagon and FBI who in turn just may be using it to spy on Greenpeace, Peta, Anti-War Protestors, and Gays.

Walter Pincus in the Washington Post Writes

Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former administration officials said.

The NSA has turned such information over to the Defense Intelligence Agency (DIA) and to other government entities, said three current and former senior administration officials, although it could not be determined which agencies received what types of information. Information from intercepts -- which typically includes records of telephone or e-mail communications -- would be made available by request to agencies that are allowed to have it, including the FBI, DIA, CIA and Department of Homeland Security, one former official said.

It's sad to that most people aren't going to wake up to the danger this situation presents until it bites them personally in the ass.

At which point, of course, it will already be far too late.

We did have a brief moment following the aftermath of Hurrican Katrina where many people realized the danger of Governmental incompetence and malfeasance - but it seems that moment has passed.

Vyan