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Elena Kagan – The Executive’s Dream

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The smartest points on the Elena Kagan Supreme Court nomination, were, as usual, made by Glenn Greenwald, who noted that not only does Ms. Kagan have no documented views on any important subjects, she has often expressed herself stolidly in favor of a greatly expanded executive branch. Ms. Kagan believes that habeas corpus and the right to a speedy civilian trial should be revoked to people accused of Terrorism, as well as their right not to be interrogated by torture, their right to see the evidence against them, and their right to see a lawyer. She has expressed this, at least, in various letters which can be found with a Google search.

It’s difficult to express my sadness at this nomination. We had prayed that Dianne Wood  – a far stronger candidate with a proven, documented record against unlimited executive power – would end up the nominee.  Some of our most cherished privileges, such as the right not to be interrogated by torture, hang by the thread of a single Supreme Court justice. Hamdan v. Rumsfeld, Boumediene v. Bush, Rasul v. Bush and several other crucial cases were decided by a narrow 5-4 majority. The above cases ruled nearly every aspect of the Bush-Obama secret detention program unconstitutional, and though they were largely ignored, their value is inestimable.

The New York Times, our bellwether to establishment opinion, let loose a glaring (Freudian?) slip in its treatment of the Kagan nomination. Halfway through the article, they say:

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

Which is baffling for a variety of reasons. First, the “ambitious agenda [to expand] the reach of government” would likely include, in NYT parlance, the health care reform bill, the financial regulation bill, the repeal of Don’t Ask Don’t Tell, or other such Obama initiatives. The “ambitious agenda” surely does not include an unlimited expansion of executive power to torture, detain, and assassinate anyone around the globe, something with which Ms. Kagan (a so-called “liberal”) wholeheartedly agrees. To the contrary, Mr. Obama has real reason to fear a liberal Supreme Court, which would continue to strike down his unconstitutional uses of executive power – hence his selection of a cheerleader for indefinite detention and torture. Were Ms. Kagan, like her predecessor Justice Stevens, to have spoken out vociferously against our present detention practices, I have no doubt Mr. Obama would have passed her over for the nomination, as he did to Dianne Wood.

The confirmation hearings are sure to unfold as usual – that is, with as little substantive information as possible. When Ms. Kagan is asked about her views on previous decisions, she will of course say: “I will not interfere with precedent.” When she is asked about any future decisions she might make, she will naturally say “I cannot comment until the case comes before me.” So we end up learning nothing about her judicial views, except for the few stray comments that suggest she supports a “robust” interpretation of executive power. Change we can believe in!

Written by pavanvan

May 11, 2010 at 9:11 pm

Note to Tea Partiers

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Former Rep. Dick Armey, the President of Fredomworks (who funds most of your rallies), is now a lobbyist for the financial sector.

That is all.

Written by pavanvan

April 18, 2010 at 5:09 pm

Posted in Politics

Tea Partiers to Raise Private Army

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This doesn’t look good – and of course, because our lawmakers are idiots, several of them support the idea of a non-state “Tea Party militia”; y’know, because our government is just getting too big.

This is a little difficult for me to swallow. Where were these people when President Bush was busy getting us into two absurd wars, creating the Dept. of Homeland Security (which was literally the biggest expansion of government since the ’70s), or reserving for himself the right to detain anyone, citizen or no, indefinitely without trial and interrogate them by torture? This is “big government” by definition, unlike this watered-down “Affordable Care Act”, which leaves the corporate system of health care almost entirely intact.

I guess I shouldn’t be arguing from a logical perspective because from the start this “tea party movement” has displayed an eerie, otherworldly indifference to reality. But from a pragmatic standpoint, well, let’s see what the Tea Parties have already done with the considerable shelter our government has given them:

  • Threatening gun violence if health-care reform passes.
  • Advocating the murder of census workers.
  • Calling a civil rights hero and congressman a “nigger” repeatedly.
  • Beginning a systemic campaign of harassment, including painting a swastika on one congressman’s office.
  • Carrying automatic rifles to town hall meetings (including one where Obama was speaking).
  • Threatening to murder a Democratic lawmaker in Colorado.
  • Severing the gas line of the brother of a Virginia Congressman, with the clear intent of blowing up his house (they got the address wrong).

Et Cetera. Is this legitimate politics? Like, you don’t get what you want so you proclaim the other side illegitimate (the “birther movement”) and threaten to kill them?

I invite the reader to imagine what the result of this behavior would have been had it occurred under the Bush Administration. I have the feeling these “patriots” would have been labeled “terrorists”, rounded up in the middle of the night, and held indefinitely without trial with the media cheering. But there’s no need to speculate! In 2006, more than 71 Iraq War Protesters (who, I might add, were demonstrating peacefully – i.e. without guns) were arrested. In 2003,  more than 275  anti-war protesters were arrested in New York. Shit – just last month, the government arrested 8 anti-war protesters at a rally. And these guys, I hasten to repeat, did not wave guns around, spout racial slurs, or threaten to murder congressmen. On the other hand, not a single Tea Partier has been arrested at a rally (to my knowledge).

It’s clear that this “movement”, such as it is, enjoys vast institutional support, from the corporations who fund the gatherings to the GOP congressmen who actively encourage this behavior (Rep. Steve King from Iowa, Mike Pence of Indiana, and many, many others have given bellicose speeches at these “tea party gatherings”) to the Democratic congressmen who have studiously avoided any serious condemnation of these actions whatsoever. As such, I think one can reasonably assume that these “Tea Partiers” serve a useful role to the corporations who fund senatorial and congressional campaigns. Clearly, if these Tea Party actions went against the wishes of our lawmaker’s benefactors (like, say, the anti-war protest crowd had), we’d be seeing a lot more “bipartisanship” against this movement.

When one takes a brief look at what the Tea Partiers want, it’s not difficult to see why. The Times reports on its front page today that Tea Party hero Sen. Mitch McConnell vehemently opposes new finance regulation (the old regulations worked so well, after all…), and indeed, the Tea Party ethos against all manifestations of “big government” can be seen to be anti-regulation by its very nature. There is nothing our industry elite – the JP Morgans and Monsantos of the world – would like better than a grassroots movement to look out for their interests. When JP Morgan says it’s against financial regulation, it looks, of course, like a crook. But when they convince (and pay) a bunch of ignorant hicks to march against “big government”, well, then it seems like the people are against financial regulation. Sure, some of them tend to get a little out of hand, what with the racial slurs and death threats, but even that serves a purpose – to keep uppity lawmakers in line.

It would be shallow to attribute the Tea Party’s rise only to GOP support of it, which, I admit, has been substantial. The Democratic silence on the matter has done just as much to encourage them. And that makes sense, considering both parties tend to work in favor of their corporate sponsors, who are clearly thrilled with the rise of a grassroots corporatist movement.

If the Tea Party succeeds in cobbling together a “militia” (it seems unlikely at this point), they will serve as the perfect complement to Blackwater. While BW remains a purely corporate mercenary force, it is only taken from the elite sector of society. A Tea Party militia would form the everyman’s Blackwater, as it were – an army made up of the public to work directly against the public interest.

Oh, if Orwell could see us now!

Written by pavanvan

April 14, 2010 at 11:46 am

Justice Stevens

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Still traveling, but I want to briefly touch upon Justice John Paul Steven’s recent retirement from the Supreme Court, which is an extremely crucial event in US jurisprudence and will likely have far-reaching ramifications on issues as diverse as campaign finance, torture, kidnapping, indefinite detention, abortion, and nearly every other issue on which the Supreme Court has given a narrow decision in the last fifty years.

Unlike the Sotomayor-for-Souter swap that occurred last year, Stevens retirement presents the first real opportunity for President Obama to re-make the Supreme Court. Stevens, who will turn 90 this year, has led the so-called “left wing” of the Supreme Court for nearly forty years. The New Yorker ran an excellent piece a couple weeks ago detailing Stevens’s long and storied career which I highly recommend reading to get an idea of what a significant force he has exerted on American jurisprudence. The last justice who still remembers World War II, Stevens has been a consistent champion for individual rights, limiting Executive Branch power, and upholding anti-trust legislation. The past decade saw numerous challenges to President Bush’s theories of unlimited executive power come before the Supreme Court, and many of the most dangerous powers assumed by Presidents Bush and Obama (suspension of habeas corpus, interrogation by torture, warrantless wiretappaing, etc) were struck down in narrow 5-4 majorities.

It is difficult to overstate Stevens’s role in providing at least a nominal limit to the President’s power. He not only voted with the majority in those decisions, he was the majority’s intellectual leader. Were Stevens not on the bench when the Supreme Court was deciding, say, Hamdan v. Rumsfeld, we would not have even a theoretical limit to what the President can and cannot do.

All this makes President Obama’s selection for Stevens’s replacement crucial. The establishment press is now reporting that Elena Kagan has emerged as the “frontrunner” for Stevens’s seat. Glenn Greenwald has a good rundown of her major characteristics, and she appears a “centrist” candidate, equally likely to please “both sides” of the aisle, and is sure to undergo a swift and painless confirmation.

To appease the “left”, Ms. Kagan takes solidly pro-abortion and pro-gay positions. To satisfy the national security fanatics, Ms. Kagan supports an expansive view of executive power, including the power to detain “terror suspects” indefinitely. According to the LA Times (via the Washington Independent), Ms. Kagan has explicitly stated that the President can hold ‘enemy combatants’ without trial:

Harvard Law Dean Elena Kagan, President Obama’s choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

This is not a fair trade. It is important to realize that Ms. Kagan’s colorful opinions on Executive power fly directly in the face of the most significant Supreme Court decisions of the past decade: Hamdan v. Rumsfeld, Hamdi v. Rumsfeld, and Boumediene v. Bush, all of which upheld the rights of ‘enemy combatants’ to be treated in accordance with the Geneva Convention (i.e. not tortured), be tried in a regularly constituted court, and challenge their detention in accordance with the Sixth Amendment. Given Ms. Kagan’s stated opinions, one can only conclude that her nomination to the Supreme Court would signify a palpable shift to the “right” for the judicial branch – that is, a shift away from the idea of “separation of powers” and toward a theory of an all-powerful executive.

Congress has long since lost almost all of its independence to massive corporations and executive bullying (remember the Iraq war?), but the Judiciary has still retained at least a modicum of  separation from the executive-legislative conglomerate. Ms. Kagan’s views regarding executive power during “war time” (and let’s not forget that this ‘war on terror’ is supposed to last 50 years) throw our independent judiciary into considerable danger. She should not be confirmed.

Death Threats Against Members of Congress: Old News

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Gail Chaddock of the Christian Science Monitor has a nice antidote to the hysteria now gripping our mainstream media regarding the recent death threats and vandalism towards members of congress. As she notes, these actions are, strictly speaking, nothing new:

The House increased security screenings for weapons following 1954 shootings in the House chamber. After a bomb 1971 bomb explosion outside the Senate chamber, metal detectors were installed at doorways in the Capitol. In 1983, after another bombing in the Capitol, metal detectors were extended to Senate and House office buildings. After the 9/11 attacks, Congress completed a Visitors Center and issued tamper-proof badges to staff.

Thankfully we haven’t seen anything like that.

Written by pavanvan

March 30, 2010 at 9:46 am

The Times, Habeas Corpus, and those Bad Ol’ Terrorists

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The Times continues its faux-reporting over the “controversy” that has erupted over whether we should act like tyrants and keep “terror suspects” in cages indefinitely without trial, or act like decent adults and follow the rule of law. Previously, The Times came out in support of the former option, happily announcing that “Detainees will be Held, but not Tried” – but as the political winds shift, so do does the leading newspaper, which now plumps for the worst aspects of both, much like President Obama. They even invoked the mysterious “experts”, who, apparently, do not include the Supreme Court.

As Jane Mayer expertly analyzed in a recent New Yorker, the Justice Department is now in a state of civil war. One one side, Attorney General Eric Holder, who advocates that “terror suspects” be vetted in a court of law to determine what, if anything, they’re guilty of. He is joined by a majority of our Supreme Court, human-rights activists, and other so-called sympathizers of terrorism. Opposing him stands Rahm Emanuel, the President’s chief of staff, who contends these “enemy combatants” deserve no quarter and should be tried, without evidence, before a “military tribunal” after being held indefinitely (after an interrogation by torture). Joining Mr. Emanual, ironically, is the Tea Party faction, along with “Republicans” in general, all of whom claim that allowing suspects of terrorism a fair trial stands tantamount to treason.

President Obama, as is his wont, has opted for a “middle path”, as The Times reports today. Some detainees, specifically those whom he is sure to convict, will be publicly tried, and the rest will just be held indefinitely because it’s impossible to convict anyone you’ve tortured a confession out of without looking like a butcher.

Granting civilian trials to some “terrorists” and secretly sentencing the others creates a multi-tiered justice system wherein only the suspects for whom conviction is assured will be allowed to go to trial. This is pre-judgment and worse.  It it is a system that does away with even the pretense of caring whether or not these detainees are actually guilty. The government clearly seeks a few nefarious-looking Terrorists to be convicted by a civilian jury – thus proving that “the system works” – and then machinery to convict the rest of the suspects who could not be tried by jury because they were interrogated by torture and their cases would be thrown out (as, indeed, many have already).

It’s worth remembering that a vast majority of Guantanamo detainees were guilty of nothing more than bad luck. An ex-Bush official is on record saying that most of the people we held there were totally innocent.

But beyond this, The Times completely neglects to mention that these military commissions are illegal. The Supreme court has ruled, in numerous landmark cases, that the whole military commissions process is unconstitutional.  Hamdan v. Rumsfeld effectively nullifies the necessary sections of the Military Commissions Act, and Hamdi v. Rumsfeld restored Habeas Corpus and Sixth Amendment rights (the right to a speedy trial) to detainees.

In fact, the majority opinion of Hamdan states that all detainees be given a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples“, and clearly states that the commissions system set up in Guantanamo does not fit that requirement.

Any article discussing discussing military commissions has the duty to mention these cases, but since they’re  inconvenient to the prevailing narrative, they become “non-newsworthy”. I’m sure the “experts” they quote (nearly all Bush flunkies) know better.

One hears often from opponents of civil liberties that it’s “borderline criminal” to read a terrorism suspect his rights, that such actions provide “comfort to the enemy”, or as Ms. Palin thundered in her memorable Tea Party speech, that we’re allowing Terrorists who “hate our freedoms” to “lawyer up”. As Scott Brown, Massachusetts Senator and Tea Party darling once remarked: “Some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree.”

But of course it is not for this charlatan to decide, but for the Supreme Court, who, unfortunately for Mr. Brown, has consistently ruled in favor of detainee rights. And for the record, the Constitution prescribes the relevant clauses to protect the rights of people who have been accused of a crime but not yet found guilty, much like these so-called “terrorists”. Until convicted in a court of law, these people are, by definition, guilty of nothing.

The reasoning employed by the Palin-Brown faction makes the dangerous assumption that anyone the government accuses of terrorism magically becomes a terrorist. In the warped mind of a Tea Partier, suspicion is proof. This works fine for most people, so long as it’s only brown Arabs with weird squiggly writing whom we lock up in cages with no trial, but the danger of promoting totalitarian practices is that you never quite know against whom they’ll be used next.


It’s also worth mentioning that every other country that has had problems with terrorism – India, Greece, Spain, etc. – have all found ways to deal with it within their already existing legal structures. They saw no need to create new levels of “justice” wherein some suspects get trials and others simply go to jail forever.

Second Anti-Government Terrorist Attack in 2 weeks

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We had another attack by a crazed anti…Obamaite? I guess? He was angry about the “expansion of government”, suspicious over the truth about 9/11, wished to reveal the truth about the “September 11th demolitions”, etc. I think there can be no doubt that the recent rise of the “paranoid style” in American politics, as exemplified by Mr. Beck and Ms. Palin has something to do with this  – and please, read a transcript of Ms. Palin’s “Tea Party” speech, wherein she harangues Mr. Obama for forty-five minutes, accusing him of every crime under the sun , except the ones he actually committed – calling him a tyrant, a usurper, a dictator, etc. before ending her speech with, and I’m not making this up, “I will fight for my country – I will die for my country!” It looks as though some of her followers may have taken those words to heart.

Needless to say the media consensus is that these were not “Terrorist” acts, but merely crimes comitted by confused Americans. “Terrorists”, as Glenn Greenwald explains, are exclusively Arab and/or Muslim. As he reveals, Newsweek‘s Managing Editor, Kathy Jones, even codified it into a “handy guide”:

Did the label terrorist ever successfully stick to McVeigh? Or the Unabomber? Or any of the IRS bombers in our violence list?

Here is my handy guide:

Lone wolfish American attacker who sees gov’t as threat to personal freedom: bomber, tax protester, survivalist, separatist

Group of Americans bombing/kidnapping to protest U.S. policies on war/poverty/personal freedom/ – radical left-wing movement, right-wing separatists

All foreign groups or foreign individuals bombing/shooting to protest American gov’t: terrorists.

So “terrorists” are, by definition, not Americans. But whatever you wish to call it, I do predict we see an increase in the incidence of this sort of thing. America is a big country, and I don’t think all 300 million of us will be subjected to this every day like, oh, say, the Iraqis were – however, people are furious at what our elected officials allowed to happen and are still allowing to happen. While President Obama may not be personally responsible for these things, the system which he heads is responsible, and he’s done nothing to change that. So the anger, at least, is justified.

These attacks do not bode well for our civil liberties, and let us not forget, President Obama has all the new powers President Bush gave himself – including the power to declare martial law at will.

Now I sound like a Tea Party protester myself! Their ideology is attractive and flawed. A discussion for another day, I suppose.

Written by pavanvan

March 5, 2010 at 11:48 pm

Posted in Politics

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