Bernie battles Citizens United on a new front

Not that this is ever going to be allowed to go anywhere, but you have to love Bernie Sanders for trying to revoke Citizens United via a constitutional amendment.



Sign his petition at the link. Yes, I know internet petitions have become somewhat meaningless. I rarely sign them myself anymore, but I signed this one. Good to encourage political bravery once in a while.

[More posts daily at the Detroit News.]

The World is the Battlefield

By Capt. Fogg

I find it remarkable that the proposed provision of the Defense Authorization act enabling a President to detain anyone suspected of belonging to a terrorist organization indefinitely and without trial, can be presented as one of those bits of "evidence" that Barack Obama is trashing the constitution. Obama's Indefinite Detention Powers is the title of more than one article. Remarkable indeed since he's threatening to veto the abomination if it passes.

I do recognize that since the Authorization for Use of Military forces (AUMF) that Congress approved after the September 11 terrorist attacks was used to bolster somewhat unfair arguments that Bush was trashing the revered document, an equal and more ridiculous counter charge has to be leveled against his Democratic successor. That is a principle we had beat into our consciousness when Bill Clinton had to face charges, some contrived and some with marginal merit that were so like unto those Nixon was glaringly guilty of.

But I digress. I'm not surprised to hear such things slithering in the murky Senatorial cistern, but I'm surprised at the bipartisan support of Sen. Dianne Feinstein's (D-Calif.) bill and the astonishing lack of debate over this shocking redaction of the Bill of Rights. I was however surprised and pleased to hear Rand Paul declare opposition is heatedly as I would do, given the chance.

I was nauseated and enraged to hear our former Presidential contender, John McCain rail about how dangerous "these people" were without regard to how we determine fairly whether or not the accusations are true. I have been raised to think that justice demanded a fair trial and no decent civilization has failed to provide a process to determine the truth of an accusation, sometimes made under duress or torture or out of jealousy or greed or worse. A less stuffy writer might simply ask: how the hell do we know the charges are true without a trial?

Senator McCain doesn't seem to care, although with his history, he might just give the opposite position tomorrow and Lindsey Graham (R-S.C.) seems proud of his shiny new black boots, claiming that now we can jail any American citizen because "it designates the world as the battlefield, including the homeland." Did he mean to say Vaterland?

"The FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of “Meals Ready to Eat,” weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color. I fear that such suspicions might one day be used to imprison a U.S. citizen indefinitely without trial. Just this year, the vice president referred to the Tea Party as a bunch of terrorists. So, I think we should be cautious in granting the power to detain without trial."

writes Senator Paul in the National Review.

Yes, I think our legislators have earned their 8% approval rating and can only wonder why it isn't lower. John McCain, you're a goddamn terrorist yourself, attempting to make Americans afraid for political purposes. Rand Paul: you may be far right, but you're damn right too!

Billion Dollar Coins and Exploding Options -- oh my!

By Capt. Fogg

Maybe the President can't simply cite the 14th amendment and raise the debt ceiling, maybe he can -- but does the Constitution provide a paddle? Must he allow the Tea Party to shut down the government as the more mainstream Republicans attempted to do in 1995 during the Clinton administration?

You remember President Clinton, don't you, the guy that the snickering snarkmongers told us would only serve one term, who would destroy capitalism, plunge us into debt and start fake wars simply to allow him to become a dictator. I'm sure the parallels are coincidental. (wink, wink, nudge, nudge)

But Obama, even if if no Clinton, ( for better or worse) may still have options, says Jack M. Balkin, Knight Professor of Constitutional Law at Yale Law School. The Constitution has as many loopholes as the Tea Party has loonies, although some of them are as arcane as something out of the Da Vinci Code. There's the Platinum Coin gambit and the exploding Option Strategy, for instance.

Even so, all may not be lost for 14th amendment solution protagonists, like Bill Clinton and a few others says Balkin.

"If the president reasonably believes that the public debt will be put in question for either reason, Section 4 comes into play once again. His predicament is caused by the combination of statutes that authorize and limit what he can do: He must pay appropriated monies, but he may not print new currency and he may not float new debt. If this combination of contradictory commands would cause him to violate Section 4, then he has a constitutional duty to treat at least one of the laws as unconstitutional as applied to the current circumstances."

Balkin likens this dispute to recent attempts to topple the president over his ability to use the military to protect the national interest or in emergencies.

"If the courts won't intervene in the Libya affair, they probably won't intervene here."

But regardless of your opinion on the best way to beat back the barbarians, (whichever side you think they're on, Balkin's CNN exclusive interview is great reading and gives a glimmer of hope that the Constitution will do what it was designed to do, protect us.

Keystone Kop Constitutionalists

Building a bit on my previous post, the very serious Congressional Homage to The Constitution was not without its enduring moments of low comedy. Two of the august members of the new empowered GOP were forced to escape the pagentry to attend a little side event down the hall. Thus they missed the legal part of the Constitutional requirement.

The Republicans, incumbent Pete Sessions of Texas and freshman Mike Fitzpatrick, missed the swearing in because they were at a fundraiser in the Capitol Visitors Center. The pair watched the swearing-in on television from the Capitol Visitors Center with their hands raised.

Sadly, "there is no provision in the Constitution for a remote swearing-in by television." This put an abrupt end to the official opening of business.

On Thursday, the Rules Committee adjourned because Sessions had made a motion to open proceedings to begin considering the GOP bill to repeal health care reform - an action that can only be taken by an official member of Congress.

Yes our intrepid pair had already violated the sacred Constitution by voting before having been legally sanctioned. Oh to have a youtube of that moment.

To paraphase Steve Benen, if the Democrats wanted to be prickish about it, they could insist on voiding all business conducted thus far, subjecting the GOP to the embarassment of having to redo the entire process and slowing their avalanche of repeal bill filings.

That's almost certainly what the Republicans would have done in this position rather than agree to unanimous consent that Boehner will now probably have to ask for in order to avoid the delay. Fortunately for our new Speaker, the Democrats are likely to be more reasonable -- or cowardly, depending on your outlook. They're likely to agree and he won't even have to cry.

[More posts daily at the Detroit News.]

Strict Constitutionalists

The Wingnut Wurlitzer has been piling on Ezra Klein for a couple of bland remarks he made about the GOP's silly gimmick of having the Constitution read on the House floor when they reconvene and he does some follow-up posts in the aftermath. Ezra makes a good point about Constitutional interpretation in light of the equally silly notion that adding a constitutional authority to all bills will make any difference:

To presume that people writing what they think the Constitution means -- or, in some cases, want to think it means -- at the bottom of every bill will change how they legislate doesn't demonstrate a reverence for the document. It demonstrates a disengagement with it as anything more than a symbol of what you and your ideological allies believe.

In reality, the tea party -- like most everyone else -- is less interested in living by the Constitution than in deciding what it means to live by the Constitution. When the constitutional disclaimers at the bottom of bills suit them, they'll respect them. When they don't -- as we've seen in the case of the individual mandate -- they won't.

He makes sense, which of course, set off another feeding frenzy on the internets.

Ezra was absolutely right to say interpreting the intention of the drafters is hard. For myself, I'd say the language was deliberately couched in ways that left it open to interpretation in the knowledge that they couldn't predict how society would evolve and meant it to be somewhat maleable to suit evolving circumstances. But for those "strict constitutionalists" who insist on seeing it as a static document, I'd suggest they can't really understand the drafters' intent unless they also live under the conditions that were prevalent at the time of its drafting.

So all those "strict constitutionalists" should immediately give up all technological improvements that have been made since it was signed in order to truly understand the Founders mindset. No cars, no airplane trips, no television, no radio, no internets, no household appliances, no central air or heat, hell just get off the national electric grid. And no ink pens either. Get out your quills and ink. And stay off paved highways.

No advanced medicine. No modern pharmaceuticals. And of course, no health insurance, Social Security or Medicare. No workplace safety rules and forget the 40 hour work week or overtime pay. Oh and no black guns anymore either. In other words, anyone who wants to "strictly interpret" a document written over 200 years ago needs to strictly live their lifestyle in order to truly channel their intent.

Remember when

They called us paranoid when we said we were worried that Bush would declare martial law? I'd call this a vindication.

— Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants. [...]

Those who advocated using the military to arrest the Lackawanna group had legal ammunition: the memorandum by Mr. Yoo and Mr. Delahunty. [...]

The document added that the neither the Posse Comitatus Act nor the Fourth Amendment tied a president’s hands.[...]

Mr. Bush ultimately decided against the proposal to use military force.

Clearly Cheney was behind the power grab but who knows if Bush would have decided differently if we hadn't been willing to endure the ridicule to warn that they were planning it? Sometimes a little preventive paranoia can be a good thing.

[More posts daily at The Detroit News]

SCOTUS rules for privacy rights

At last! SCOTUS finally got one right. On an 8-1 vote, they found the strip search of a teenage girl by school officials to be an unconstitutional violation of privacy. An easy and logical conclusion. They were searching for one freaking high grade Advil for crying out loud. Unsurprisingly, Clarence Thomas was the dissenter on that one.

Of course, the court was only half right on this case. They voted 7-2 to excuse the school because the law wasn't settled at the time of the search and assume the school was just being overprotective in deference to the parents. But as Justice Ginsburg noted in her dissent, the assistant principal, "made Savana sit on a chair outside his office for more than two hours." “At no point did he attempt to call her parent,” Justice Ginsburg wrote. “Abuse of authority of that order should not be shielded by official immunity.” Damn straight.

[More posts daily at The Detroit News]

To be a conservative

By Capt. Fogg

I don't want to speculate about how many of our publicly educated young people know who John Wilkes Booth was, but I'll bet that far fewer recognize the Englishman, John Wilkes and know about the part he played, by proxy, in shaping the fourth amendment to our Constitution. Because Wilkes ran afoul of the Crown by openly criticizing a treaty signed by George III, a general warrant for his arrest led to his apprehension along with the publishers of the paper that printed his argument. Wilkes had popular support in England and in the colonies and the notion that the King could authorize upon his own authority and without challenge from Parliament or the independent judiciary, a general search or fishing expedition to seek anything they could use to squelch protest, made him a bit of a hero and martyr.

We are no longer a group of colonies. We are no longer the nation that grew out of those colonies and we have another George who insists on the right to unrestricted, unsupervised and secret investigations without court oversight or any scrutiny at all. We are no longer a nation that objects. We are no longer a nation that values individual liberty to the point where we can accept the slight risk of crime rather than the security of a police state.

We've had so many examples of warrantless wiretapping and other acts of indignity without probable cause that anyone who doesn't know, isn't someone who cares, but documents appearing in the Washington Post show how the FBI can and has been indulging in espionage of "suspects" without having to explain who they are or why they are or what they are suspected of by what evidence to any court. Only the Federal government knows for sure; a Federal government that loves secrets and fights to keep them.

That they can use whatever they find for whatever purpose they wish seems to be evident in the case of Eliot Spitzer and the use of his ATM records to show that he cheated on his wife. I'm sure nobody believes that information was obtained for such purposes and we're just too delighted by the circus to care. If we don't send to know for whom the wires are tapped, the e-mails read, the bank records examined, the mail box inspected, the credit card receipts tallied, it none the less tolls for us.

If we're good subjects, the King will be good to us and protect us. He may or may not tell us what he's protecting us from or how or why, but we can trust George or pay the cost of being adjudged, like John Wilkes, a Liberal, a traitor, an enemy of the state.

Which side are you on, Mr. conservative?

Cross posted from Human Voices

Shamed by Peru

By Capt. Fogg

It's been a couple of days, but it's not that there's nothing to write about; it's just that what used to be a buffet of outrages has become a suffocating cesspool of corruption, just too foul to approach. Things that used to shake a nation like ours seem only part of the background stench and hardly stand out as individual points of corruption any more. One remembers Richard Milhous Nixon, the man whose treachery caused him to flee Washington, as just another cheap crook and not much at all compared with the swashbucklers and scofflaws who now inhabit the White House and the Justice Department and the Courts - and nearly every other position of authority.

Yesterday, Alberto Fujimori, the former president of Peru was sentenced to 6 years in jail for abusing his presidential powers by ordering a warrantless search of the apartment of the wife of a corrupt official. He faces further charges that could add another 30 years to his tab, stemming from the deaths of suspected "terrorists" and the kidnapping of a journalist.

It wouldn't happen here. Kidnapping journalists and others, holding people incommunicado for years without charges, sometimes torturing them, perhaps allowing them to die in confinement - these things are standard procedures in Bushamerica, as are warrantless wiretappings, searches and other illegal intrusions into everyone's affairs. And of Course, Fujimori never started a war under false pretenses in which hundreds of thousands died, millions were rendered homeless and a country was reduced to ruins. Peru takes action, the United States or America puts on their iPods and mumbles about Jesus and homosexuals and looks to people like Mike Huckabee and his imaginary friend for leadership.

Ex President Jimmy Carter gave a speech back in May of 1974 after having read transcripts of Nixon's tapes:

"The Constitution charges us with a direct responsibility for determining what our government is and ought to be," he said. "I have read parts of the embarrassing transcripts, and I've seen the proud statement of a former Attorney General who protected his boss and now brags of the fact that he tiptoed through a minefield and came out. . . . quote, clean, unquote. You know, I can't imagine somebody like Thomas Jefferson tiptoeing through a minefield on the technicalities of the law and then bragging about being clean afterwards. . ."

I don't have to use my imagination to picture the Bush administration safely cruising that same minefield with total disregard for any consequences in their armored tank called the Patriot Act. The law is what they want it to be; justice is what they say it is and the people do nothing but argue about Christmas and heretics and what the Wal-Mart greeters are saying this year. How sad it is that the country that once had some legitimate claim to holding up the torch of liberty for the world to see has to look to Peru as a lesson in the limits of government power.

Cross posted from Human Voices