Bob in AZ

Bob in AZ

Bob in AZ

And you can’t have my vote for Darren Fookin Sharper–which is what I’d vote for–if you threaten to then copyright it. Nuh uh. I’d even vote for (ack!) Jeremy Fookin Shockey to avoid the copyright.

so, ew, did I pass ???

my guy came thru, right ???

btw, I been practicin a few new lines to warm up for when the brady bunch comes to town, which one ya like best:

Marcus Fookin Colston

Jeremy Fookin Shockey (not my favorite)

Pierre Fookin Thomas

Darren Fookin Sharper

(I’m gonna copyright that last one, ala “Bucky Fuckin Dent”. every time you use it you owe me a dollar)

maybe we could have a vote on it

and y’all might need this after that

(duckin an runnin)

shouldn’ta closed trashtalk afore I noticed …

Ashcroft was one of the ones who was spooked by the fact of me being a witch

you’re a witch ???

I got a question: how can I be sure the candy I passed out last saturday night REALLY was prayed over by witches (per pat robertson IIRC) ???

is there some kind of label or logo I should be lookin for ???

sorry to go O-T, but I had to ask …

btw, from the looks of the neighborhood kids today, I got some counterfeitbogus stuff …

It is amazing how the basic fundamentals of the separation of powers – the sharing of power – are so completely foreign to the general run of these Judiciary Committee legislators (or, to be more accurate, these HJC professional fundraisers). For example, the fact that a Grand Jury is itself a fundamental check on the abuse of Executive power completely escapes someone like Gallegly (egged on by Smith). It may be mostly pro forma anymore, but it still exists, and, like jury trials, is an extremely important part of the system for preserving justice and liberty in this nation. But there’s Gallegly trying to pretend that forcing the secret FISA court to accept whatever the FBI Director, or his deputy, alone can summon up as a reason to swear to the need for a library/book store personally-identifiable records search, is somehow an equivalent check or balance to that represented by a Grand Jury subpoena.

I don’t know if the HJC is in fact going to deal with its State Secrets legislation today, or not, but I ran across this comment I made at Glenn’s some time ago, and it seems worth repeating, given the sorry state of the HJC debate so far. It addresses the same crucial issue of the balance of powers, or lack thereof, in existing, and proposed, legislation, but here focusing on new State Secrets legislation that may only purport to hem in the Executive Branch:

It’s key that Congress recognize the incentives and power of the branch of government that both asserts “state secrets” and controls the means of criminal case prosecution and of government defense in civil cases, as well as the option of intervening into wholly private civil cases (on behalf of corporate defendants, for example). [Recent examples of the latter situation include the spying-related civil suits against the telecom corporations and the torture-related civil suits against the Boeing/Jeppesen corporation, where the United States has intervened to attempt to dismiss the suits in the name of "state secrets."]

That powerful branch is of course the Executive Branch – acting through its Department of Justice and U.S. Attorneys in every state. So when the Supreme Court propounded its short-sighted Reynolds decision in the early 1950s, it handed a powerful, broadly-worded shield to the branch of government that alone holds the power to prosecute and defend in the name of the United States. That branch – the federal executive – is at the same time the branch that effectively controls the classification and declassification of information under its control, with little or no Congressional oversight. Put all that together, and we have the makings of a recipe for disaster in a self-governing, representative democracy that depends on public debate and built-in checks and balances to preserve liberty.

There are, obviously, remedies – remedies that ought to be thought through, and very carefully defined in a way that the Supreme Court’s Reynolds decision (and, to a lesser extent, the Classified Information Procedures Act – “CIPA” – law that followed it) was not, using lessons learned over the intervening years. Ondelette is spot-on in saying that Congressional reform of the overall system of classification itself is one obvious, overdue avenue for a fundamental remedy – a remedy that would tend to return respect to the meaning of classification itself, among many other benefits.

But aside from thorough reform of classification and/or finding some method of getting the Department of Justice out from under the control of the presidency alone (which is starting to seem more and more advisable at the federal level, and is done in many states via elected AGs), we have to find a way to address these power imbalances when writing new law governing Executive Branch-classified information.

CIPA (and the graymail tactics it provides powerful defendants) just about sank Fitzgerald’s Libby prosecution. It was nip and tuck at one point, from all appearances (which weren’t many, given the secrecy involved). The process stretched out for months, pre-trial. And that was with an excellent (if CIPA-inexperienced) judge, an extremely dedicated and hard-working government prosecuting team, and a CIA motivated to help the government’s prosecution – the Intelligence Community repeatedly provided different substitute versions and summaries of classified information that could be publicly released (but which mostly never were released in the end, because the whole tactic was a labor-intensive effort forced by Libby in an effort to prevent a trial).

Thus: Under CIPA the government itself is the prosecutor and has a powerful motivation to overcome the classified information hurdles involved to proceed to and through trial. Not so with the “state secrets” privilege – or new law – in civil cases: There, the government is instead the defendant or intervening for the defendant and has little to no motivation to help the trial proceed (or succeed) past “privileged” secrets asserted by the government in the name of “national security.” That’s a rather profound difference, which Congress cannot gloss over as though the Executive Branch will act with equal dispatch under both the criminal case CIPAct and the proposed civil case SSPAct.

CIPA also needs reform, as Judge Walton tried to convey – it offers a huge incentive to attempt a graymail dismissal for the most powerful Executive Branch actors (those who had the most access to highly classified information). If Congress were serious, it’d be considering reform of CIPA too, with Patrick Fitzgerald and others testifying about CIPA’s strengths and weaknesses.

In sum, carelessly modeling a State Secrets Protection Act on the Classified Information Procedures Act is obviously insufficient, and recklessly overlooks the differing roles of the parties involved in the disputes, and the inverse incentives for the Executive Branch in criminal vs. civil cases involving its classified or “privilege-asserted” information. More onerous burdens and requirements must be placed on the Executive Branch in any SSPAct, as compared to CIPA, to counteract the obvious temptation for busy Department of Justice attorneys to let the inevitable red tape of a state secrets act block adjudication of civil suit claims.

And I somehow doubt that we want to rely on the instinctively-authoritarian Pat Leahy, 1986 originator of the National Security Letter, as the primary author (or rubberstamper) of any such new State Secrets Protection Act.

but …

but …

we’re the “Rebirth of Freedom” people

to sum up, I don’t share your pessimism

I gots sum pessimisms of my own …

a person whose lifetime that stretches from JFK thru mad king george bunnypants has no business being an optimist, but I still got faith

the only thing we can do is inform today’s utes of the promise they could achieve

we may sound like idiots, but its THEIR future

watergate turned me away from politics for 20 years

bushco has today’s utes pissed off and motivated

http://www.aclu.org/files/pdfs/safefree/doevmukasey_decision.pdf (Newman, Calabresi and Sotomayor) where even with nifty “construction” of many parts of the legislation to avoid constitutional issues (and to use a very different construction than DOJ and the Exec were using in their enforcement) there were still constiuttional issues. Maybe fixed now, maybe not. I lean towards not.