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Saturday, October 08, 2005

The opening of the superior and highly-recommended musical "1776" has a disconsolate John Adams, Continental Congressional delegate from Massachusetts, standing alone in the bell tower of Liberty Hall in Philadelphia.

The piercing voice wafts up "Mr. ADAMS! Mr. ADAMS!" Enter the congressional custodian. What are you doing up here, Mr. Adams? Better get back down to congress, Mr. Adams. They're taking an important vote, and can't do it without Massachusetts present.

Adams, understandably, asks "What is the burning issue this time?"

On whether the Rhode Island militia should be required to wear matching uniforms.

And in a voice masking barely-controlled anger, frustration, and outrage at the sheer triviality of the petty membership of that august body in the midst of rebellion, war, fear and chaos, Adams replies: "Oh ... good ... God."

Which is precisely how I reacted when Mad King George nominated his former secretary to the bench of the United States Supreme Court.

Don't believe me? (I mean about the "secretary" thing.) It's right there on the picture caption at its very own White House web page at:
"President George W. Bush tours a canyon with White House Staff Secretary Harriet Miers at his ranch in Crawford, Texas, Friday, Aug. 9, 2002."
It's a fair characterization, and the only one I'm going to bother acknowledging. I used to write resumes for a living in Orange County, California in the late 1980s (the same time that Bush was meeting Miers at a legal eagle dinner in Dallas) and I recognize Curriculum Vitae* inflation when I read it. (*a name for resumes of really important monkeys)

No: it's Bush's equivalent of Nero appointing his horse to the Roman Senate. It's an act of utter disdain, of contempt and arrogance -- the last because he chose to nominate a crony in the very week that failed crony Mike Brown was facing a firestorm for his deadly incompetence in the wake of Hurricane Katrina.

Oh ... good ... God.

Make no mistake about it, my friends, I am doing my level best not to burst into an extended and inspired stream of sheer obscenities the likes of which haven't been seen this side of Marine Corps boot.

We are literally faced with the Final Confrontation, folks. This is George "Damien" Bush's final showdown, and nobody seems to notice it: this is the final squareoff between the American bedrock ideal of meritocracy (it doesn't matter who your father is: you'll be judged on who YOU are, and your skills, intelligence and accomplishment) and the long, dismal record of imperial cronyism that stretches back as far as Babylon and Egypt.

The ineluctable truth is, the undeniable truth is, the unquestionable and unspoken truth is this: Harriet Miers was the least qualified candidate that the White House vetted.

And she was the one doing the vetting.

Well, at least she's as shameless in her process as Antonin Scalia was when he didn't recuse himself from Bush v. Gore, even though his SON was working as a Bush campaign attorney, or when he went duck hunting with He-who-is-named-for-that-which-he-does-not-possess Cheney WHILE Cheney had an appeal (on the secret energy talks) before the Supreme Court.

But mere association with criminality and a willingness to not care about the appearance of impropriety are not, in and of themselves, reason to disqualify a candidate.

No: the problem is not whether or not Miers is not unqualified; the problem is whether she is qualified, which she clearly is not, resume inflation and the usual "ad agency" political lies/talking points notwithstanding.

They will release no information on this pig's poke. It will remain sealed. Why? Because Miers "deserves a fair 'up-or-down' vote." Well, assuming it's the gladiatorial arena we're talking about, thumbs way down.

And then feed her to the lions, as a warning to other presumptuous cronies and toadies.

Either that, or accept that Nero's horse is a legitimate senator, and book your tickets for the imperial fiddle concerto. (The fireworks in the window behind the Emperor ought to be fantastic.)

Now, the Right Wing caught on: Pat Buchanan, George Will, Robert Bork and even crinoline and taffeta lunatics Ann Coulter and Michelle Malkin all "got it," crippled as their mental processes are through an unending toil at crafting only specious and fallacious arguments.

Would that the same could be said for the Democrats.

Given this penultimate insult to the Constitution itself, what did the Hispanic Democrats come up with? Houston CHRONICLE http://www.chron.com/cs/CDA/ssistory.mpl/politics/3387991
I am Congresswoman Linda Sanchez from California.

This week, President Bush nominated Harriet Miers, one of his closest friends, to serve on the United States Supreme Court -- a lifetime appointment on the highest court in our country. The Supreme Court's decisions have serious implications for our civil rights and our liberties.

Once again, President Bush has missed a [sic] historic opportunity to nominate a qualified Hispanic to the Supreme Court. In seeking to put his friend on the Supreme Court, the President overlooked many qualified Hispanics. The Hispanic community has many lawyers, judges, and outstanding legal scholars who are eminently qualified to be a Justice of the United States Supreme Court.
Oh. I guess skin color trumps the very bedrock of our republic. (What an astonishingly selfish and self-centered point of view: We don't care that she's an unqualified crony. We only care that she's not a Hispanic.)

Well, I gots news for you, Miz Sanchez: Alberto Gonzales would have been an equally vile choice. But, would his 'race' be all you cared about, then? (After all, he would still, technically be a White European Male under several ideological interpretations).

But Democratic Senator Barbara Mikulski from Maryland did Ms. Sanchez one better:
Sen. Barbara A. Mikulski, D-Md., accused critics of Miers' nomination of being "incredibly sexist."

"They're saying a woman who was one of the first to head up a major law firm with over 400 lawyers doesn't have intellectual heft," Mikulski said. "I find this a double standard." [AP, byline: JESSE J. HOLLAND, Associated Press Writer. Saturday, October 8, 2005]
Which sounds a lot like being against rape for sanitary reasons.

(And, again, note the resume inflation. But it is a non-sequitur. We are not "hiring" Miers to oversee SEC attorneys, or even in the Attorney General's office.)

Oh ... good ... God.

While it is legitimate to address issues of race and gender in an historical context, and through policies of equalization (Title 9, and affirmative action come to mind) it is NOT legitimate to make race and gender the sole deciding criteria for hiring and firing. Look at this absurd crap:

Rep. Linda Sanchez disqualifies "Harry" Miers on the basis of race. Senator Barbara Mikulski say's Harry's qualified on the basis of gender.

And they're both crazier than an Englishman in the midday sun.

It's ALMOST worse than the gender- and race-pandering implicit in Bush's "decision" in the first place. Instead of addressing real discrimination issues, he just finds another token for his Baskin-Robbins administration of thirty-two flavors of incipient fascism*. Liars of every race and color -- the only thing that matters is creed.

[*What is "fascism"? Well, fundamentally, it's Big Government and Big Business throwing a big wedding party, with everyone else paying for the ceremony and the reception. Iraq sure is starting to look a lot like Ethopia, come to think of it.]

Merit doesn't enter in to it? Being the buddy of an pampered buffoon is the criteria? Credentials don't count? Experience doesn't count? Having been a JUDGE doesn't count? Just being a Bush fixer counts?

Sheerest, utterest insane bizarre nonsense. Savagely weird craziness. And, in a purely secular, American sense: heresy.

Oh ... good ... God.

Bring on Nero's horse.

Face it, kiddies: Judge Judy is MORE qualified than Miers.

Judge Wapner and Judge Ito are more qualified than Miers.

Look: the Right Wing have been creating their own, alternate Judicial and Legal culture for decades now -- as one wag noted, even before Bush stopped drinking.

The major reason that I opposed the John Roberts nomination was in his lying about being a member of the secret Federalist Society -- the organization formed to push the competing view purportedly against "judicial activism" and touting "Founding Fathers-ism." I had no doubts as to his legal and judicial qualifications for the bench. But the Miers nomination is as trivial as the vote on the Rhode Island militia, and as insulting as Nero's horse.

It is a sad pass when I agree with Robert Bork and Ann Coulter on ANYTHING, but here I must. But let me take it further: Miers is either consciously an insult to the Supreme Court and the American people -- in which case it's evil, and consciously malevolent, and must be opposed -- else it springs from a fundamental stupidity and arrogance, and an utter lack of understanding of the courts and the rule of law -- in which case it's evil, but not consciously malevolent, and must be opposed.

The bottom line is that the nomination must be opposed, Sanchez' racism and Mikulski's sexism notwithstanding. But let us oppose it for the highest reasons, and not the basest motivations -- but if we MUST take action, base motivations STILL trumps clueless acquiescence to evil.

Say "hi" Senate Democrats! Wave at the camera of history, and see if you can get the Ghost of Neville Chamberlain into the picture. Great! Say "SLEAZE"!

The Democrats are playing "possum" -- except that possums are vertibrates, and, near as I can tell, not one Democrat in Washington, D.C. can make that claim, legitimately.

Well, maybe John Conyers and Barbara Boxer can.

Senate Democratic leader Harry Reid, the Mormon Democrat from Nevada has actually praised "Harry" Miers. This is simply disgraceful. Perhaps the Democrats are playing "strategy" politics, but it's a bankrupt strategy by a gaggle of demonstrably craven mental midgets.

Are they EVER going to stand up for ... ANYthing?

Oh ... good ... God.

George fiddles. Senator Horse whinnies and snorts.

Do we hate the United States so much? Has democracy and self-rule been so awful, is being the "Number One" world superpower so inconsequential that we can continue to watch as millionaires, crooks, thugs and cronies destroy our future and our children's future?

At least the lunatic Right gets it. A damned shame it is that the "moderate" and "liberal" Left doesn't. A plague on both their houses, but, please, NO plagues nicknamed "Harry."

And it's high time that Harry Reid stepped down as Senate Minority Leader. It is increasingly apparent that his "leadership" is precisely akin to a country rube losing the farm to a slick shell game at the county fair. Quick, Harry: which shell is the pea under this time?

Well, at least we can savor the historical irony of this damned and doomed moment in history: In December of 2000, John Roberts was helping his old buddy, Ted Olsen (now Solicitor General, who will be arguing the Administration's cases before the Supreme Court) prepare his brief for Bush v. Gore, and now he's the Chief Justice of that Supreme Court. Three years ago, "Harry" Miers was Bush's secretary and before that, she was his "fixer" on the draft dodging story among others, and now she's up to be a judge on that same bench.

After all they've given him, you'd think he might show a little more respect to his legal base in and outside of the Supremes. But no. Today's Bush radio address was more resume snake-oil, glibly suggesting that Harry's unacceptable resume is, in fact, highly acceptable:
"This week, I nominated an exceptional individual to replace retiring Justice Sandra Day O'Connor on the Supreme Court of the United States. Harriet Miers is a remarkable woman and an accomplished attorney. She has wide experience in the courtroom and at the highest levels of government. And she will be an outstanding addition to our nation's highest court."
Oh ... good ... God.

What we ought to be saying to Bush is what Hollywood screenwriter Ring Lardner told the House Un-American Activities Committee in 1947:
"No, I will not answer you, because you do not have the right to ask the question."
(Lardner spent jail time for contempt of Congress, and was blacklisted. But then, Lardner had a spine. AND he was right, as we all now admit. Even Right Wing Kooks.)

Bush had no right to make this nomination. Sadly, the only people who seem to "get" that are his own conservatives and neo-cons. The Democrats are too busy dithering to do other than lie supinely in the mud, as our republic sinks from sight altogether. Facts, reason, evidence, truth: none have any role our national dialogue. Perhaps this is why many feel that it doesn't matter that this consummate insult has been thrown in our faces.

And don't give me the "Abe Fortas" or the "Bill Rehnquist" arguments. Fortas was forced to resign from the Supreme Court in disgrace, and Rehnquist WAS a disgrace -- capping a Chief-ship by surpassing former lousiest-Chief-Justice record-holder Roger Taney (of Dred Scott decision fame) with Bush v. Gore -- the worst decision ever made by a Supreme Court.

(If that's who "Harry" Miers is supposed to be in the same league as, we're in worse trouble than anyone realizes.)

Perhaps a new aphorism of evil will echo down through the ages along with infamous cluelessness on the order of "Let them eat cake," and " ... so many of the people in the arena here, you know, were underprivileged anyway, so this--this (she chuckles slightly) is working very well for them."

"Give 'em 'Hell Harry.'"

For these reasons, and so very many, many more, we are pleased to note that the "Barking Moonbat of the Week" for this week is Harriet "Harry" Miers. (Click at right)
Friday, October 07, 2005

Now that we've established that Bush et al would like to have the authority to send the armed forces in whenever the president deems it worthy -- using the justifications of hurricane foulup (WHOSE fault?) and Avian Flu (60 dead poultry workers and 100 cases in a population of 6 billion) -- we need to understand what the Posse Comitatus Act was, and WHY it was important to the Congress of 1878.

According to writer Alan Bock,
The Posse Comitatus Act was enacted in 1878. It reads as follows (as revised in 1956):

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned for not more than two years, or both."
A regulation by the Department of Defense includes the Navy and the Marine Corps as bound by the act. The Coast Guard, which until the creation of the Department of Homeland Security was under the Department of Transportation, has always had some domestic law enforcement responsibilities, even though it has some quasi-military functions as well.
Bock's article is worth reading in its entirety, but here is the core of it:
It would behoove Americans, then, to remember or learn why we have a Posse Comitatus law and how it has served to protect American freedoms and our constitutional order.


Posse Comitatus is a Latin term meaning "power of the county." Black's Law Dictionary defines it this: "Posse Comitatus: the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases as to aid him in keeping the peace, in pursuing and arresting felons, etc. Besides the old English common law of which Black was probably the prime exponent, Americans catch a whiff of the Old West in the concept. Sheriffs in real history probably didn't gather a posse to go after bad guys as often as happened in Hollywood movies. But it happened.

The idea that every able-bodied person is ultimately responsible for keeping peace, that it is not solely the task of designated professionals, especially when something approaching a crisis is imminent, is not only part of our heritage as Americans. It is a bedrock of republican liberty, not just in America but wherever it has been reasonably successful.

The Posse Comitatus law was passed in 1878, not only in response to some of the abuses committed by federal troops during the Reconstruction period in the South after the Civil War, but more specifically after many suspected that federal troops influenced the election of 1876, in which Rutherford B. Hayes was chosen by the Electoral College and federal troops ran some polling places in the South. Specifically, Hayes won the disputed electoral votes of South Carolina, Louisiana and Florida, states where President U.S. Grant had sent troops as a posse comitatus by federal marshals at the polls if deemed necessary.

I've read some about that election but don't have a settled view as to whether it was really stolen or not. But the use of federal troops in an election, the most central event in any democracy, bothered even many in Congress who didn't think it was stolen (or perhaps welcomed the theft).
Hmm. Interfering in elections (remember the reports on contingency plans if there was a "terrorist attack" during the November 2004 election?) by a Federal authority a problem?

Now, Bock pooh-pooh's the idea that we're moving towards a military dictatorship ...
"And so Americans became a little more accustomed to seeing people on the streets with military uniforms and automatic weapons or imposing vehicles, and beginning to process that presence as not only normal but perhaps even comforting.

"This doesn't mean we'll be pushed into a military dictatorship the day after tomorrow. But it makes the prospect just a bit more thinkable."
But I'm going to suggest that where we are today was unthinkable in 2000. If you traveled back in time to, say, Labor Day, 2000 and told a bunch of citizens at a literary picnic, the scholars would laugh at you "Impossible!" and the editors would tell you that no reader would buy it "Improbable!" History suggests that the movement to an imperial bureaucracy underpinned by the armed forces can happen with astonishing rapidity.

We need travel no further than Germany in the 1930s to watch as their "9-11" was pounced on: the burning of the Reichstag -- an arson never solved, but retroactively ascribed to the Nazi Party because it seems like something they'd do, just as many conspiracy theorists would like to ascribe the 9-11 attacks to the shadowy forces behind Bush.

And the electoral tide was already running against them, we need to recall, as well. Hitler, in his address asking for emergency powers literally used the term terrorists, and the German legislature, afraid to buck popular opinion (and the sea of brownshirts they'd waded through just to get into the hall), willingly VOTED Hitler the power that he so famously abused.

We need to move beyond the knee-jerk reaction to the lesson of Nazi Germany: that it is either monsters or a monstrous argument. History is rife with parallels, and the lessons of history require that we pay attention, or, in the famous aphorism of Santayana, we are doomed to repeat those lessons, the historical equivalent of being kept back to repeat a grade of school.

The Nazi propagandist Josef Goebbels proudly told a Nazi Party convention that they had taken the country with two inventions: the radio and the airplane. The radio, because they could spread their -- admittedly manipulative -- message to the furthest corners of the country; the airplane because they could hold events even in those corners.

But we must remember that the legislature WILLINGLY ceded their authority based on the promise: "I will keep you safe."

The fortress had to be the "Fatherland." Churchiness, family values, hominess and patriotism were pushed as powerfully and as shamelessly as they have in any other country. What German could hate Germany? What German didn't know that his country was the best country in the world? What German didn't hate the enemies of his country and how few wondered why those enemies might have a beef with his country?

The lesson of history is not a question as to whether the Bush Administration could use emergency powers to plunge us into a military dictatorship. The lesson is not to allow any administration the opportunity to do so. And that's why Posse Comitatus is important.

Because, as noted yesterday, basing a power to inject federal troops into any "emergency" situation based on their 'superior logistics' is rationally unsupportable.

Clearly, the famed "private sector" does a much better job, plus the military is NOT trained to dispense aid, medical support, or track and deal with epidemiological emergencies. Several high ranking generals have noted this fact. The military has a role, but that role is in the conquest or defense of territory (depending upon how seriously you take the 1948 change of "The War Department" to "The Defense Department").

in "The Myth of Posse Comitatus" October 2000, Major Craig T. Trebilcock states: http://www.homelandsecurity.org/journal/articles/Trebilcock.htm
The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military's role in civilian law enforcement and security issues. The plethora of constitutional and statutory exceptions to the act provides the executive branch with a menu of options under which it can justify the use of military forces to combat domestic terrorism. Whether an act of terrorism is classified as a civil disturbance under 10 U.S.C., 331-334, or whether the president relies upon constitutional power to preserve federal functions, it is difficult to think of a domestic terrorism scenario of sizable scale under which the use of the military could not be lawfully justified in view of the act's erosion. The act is no longer a realistic bar to direct military involvement in counterterrorism planning and operations. It is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact.


Is the Posse Comitatus Act totally without meaning today? No, it remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter. Although no person has ever been successfully prosecuted under the act, it is available in criminal or administrative proceedings to punish a lower-level commander who uses military forces to pursue a common felon or to conduct sobriety checkpoints off of a federal military post. Officers have had their careers abruptly brought to a close by misusing federal military assets to support a purely civilian criminal matter.

But does the act present a major barrier at the National Command Authority level to use of military forces in the battle against terrorism? The numerous exceptions and policy shifts carried out over the past 20 years strongly indicate that it does not.
The irony in all of this is that, in point of fact, Bush is probably right: we need to revisit the Posse Comitatus Act, but not because the president is constrained by it. We need to revisit it because the president IS NOT constrained by it. But, as noted, common practice and custom have created a de facto restraint, and we should take an extremely dim view of any attempt to alter or weaken that (potentially mythical) restraint. The perception of prohibition is just as powerful as actual prohibition in many cases -- as anyone with a dog who stops at a windowless screen door, or who has seen cattle stop in front of painted "cattle guard" lines on a country blacktop can attest.

I would argue that leaving things as they are is the prudent course: better the devil you know than the devil you don't.

Here, from the former acting associate director for national preparedness of the Federal Emergency Management Agency (FEMA) from 1981 to 1983, Colonel John R. Brinkerhoff tells us, (http://www.homelandsecurity.org/journal/Articles/brinkerhoffpossecomitatus.htm ) :

The Story of the Posse Comitatus Act

The law was enacted as a result of the election of 1876, which was the event that ended the period of Reconstruction after the Civil War. The law was enacted to overturn an 1854 opinion of the attorney general. The story is bound up with the conflict within the United States about slavery and the Union.

The posse comitatus doctrine comes from English common law. Posse comitatus means, literally, the "force of the county"; the posse comitatus is that body of men above the age of 15 whom the sheriff may summon or raise to repress a riot or for other purposes.

In 1854, Caleb Cushing, attorney general for President Franklin Pierce, blessed the posse comitatus doctrine and opined that marshals could summon a posse comitatus and that both militia and regulars in organized bodies could be members of such a posse. This was done to improve the enforcement of the Fugitive Slave Act of 1850. Among other things, this meant that the United States was responsible for expenses incurred by U.S. marshals in employing local police, state militia, or others in apprehending and safeguarding fugitive slaves. The Cushing Doctrine meant that even though the armed forces might be organized as military bodies under the command of their officers, they could still be pressed into service by U.S. marshals or local sheriffs as a posse comitatus without the assent of the president. This doctrine was merely the opinion of the attorney general and was not subjected to judicial or legislative review prior to its enunciation. The Cushing Doctrine encouraged the use of the Army and Navy as police forces, and it was used widely in the West, where the Army was the only armed force available to assist local officials to enforce the law along the turbulent frontier. It had little effect in the South during the period before the Civil War and came into prominence there only during Reconstruction.

During Reconstruction, the Army exercised police and judicial functions, oversaw the local governments, and dealt with domestic violence. In effect, the Army governed the 11 defeated Confederate States and was the enforcer of national reconstruction policy during all or part of the period. Before the Civil War, the militia under state control was used to control local disorders throughout the United States, but during Reconstruction, there was no effective militia in the defeated states, so the Army protected the people (especially the newly emancipated slaves) and dealt with disturbances. This use of the Army was validated by the Civil Rights Act of 1866, which empowered U.S. marshals to summon and call to their aid the posse comitatus of the counties, or portions of the land or naval forces of the United States, or of the militia. As the former Confederate States were readmitted to the Union, the status of the Army changed, but its role remained much the same.

After 1868, when all but three of the Southern states had reentered the union, the problem became one of how to obtain assistance from the Army to enforce the law. In response to a desperate plea from a U.S. marshal in Florida, the Attorney General of the United States, William M. Evarts, cited the posse comitatus doctrine that gave U.S. marshals and county sheriffs the right to command all necessary assistance from within their districts, including military personnel and civilians, to serve on the posse comitatus to execute legal process. Evarts' decision led to numerous requests by marshals and county sheriffs for troops to use in enforcing the law, all without presidential approval. This met with some resistance from the Army, and the War Department said that the obligation of individual officers and soldiers to obey the summons of a marshal or sheriff must be held subordinate to the paramount duty as members of a permanent military body. The troops were to act only in organized units under their own officers and would obey the orders of those officers.

In 1871, President U. S. Grant sought to provide a basis for the use of troops other than posse comitatus. In accordance with Grant's policy, the War Department issued general orders saying that the forces of the United States may be committed and shall be employed to assist the civil authorities in making arrests of persons accused of crime, preventing the rescue of arrested persons, and dispersing marauders and armed organizations. By the end of Grant's second term, the South was ready and able to end U.S. Government control over their states.

In the election of 1876, the Democratic candidate, Samuel J. Tilden, won a majority of the popular vote, but the Republican candidate, Rutherford B. Hayes, ended up with a majority of one vote in the Electoral College. The election was disputed and finally determined by a deal in which Tilden would concede the election if Hayes agreed to end Reconstruction. Accordingly, Reconstruction ended in 1877 with the inauguration of Hayes as the 19th president. Federal troops in the South were no longer used to enforce the law, and the Southerners became masters in their own states for the first time since the end of the Civil War.

Congress passed the Posse Comitatus Act in 1878 in a dispute over the use of federal troops by U.S. marshals in the South. Based on precedent, Attorney General Charles Devens took the position that the U.S. Judiciary Act of 1789 authorized U.S. marshals to raise a posse comitatus comprising every person in a district above 15 years of age, "including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a Sheriff or Marshal." However, Congress had become disenchanted with the habit of U.S. marshals and sheriffs to press Army troops into their service without the approval of the commander in chief. The Southerners in particular questioned this policy. Ironically, the posse comitatus doctrine had been postulated in 1854 by Attorney General Cushing to help Southerners enforce the Fugitive Slave Act. Now it was being used to contest the Ku Klux Klan. On 27 May 1878, Representative J. Proctor Knott of Kentucky introduced an amendment to the Army appropriations bill; the amendment eventually became the Posse Comitatus Act. In passing the act, the Congress voted to restrict the ability of U.S. marshals and local sheriffs to conscript military personnel into their posses. They did not vote to preclude the use of troops if authorized by the president or Congress.

His conclusion?

It is time to rescind the existing Posse Comitatus Act and replace it with a new law. The old law is widely misunderstood and unclear. It leaves plenty of room for people to do unwise and perhaps unlawful things while trying to comply with their particular version. It certainly does not provide a basis for defining a useful relationship of military forces and civil authority in a global war with terrorism. The Posse Comitatus Act is an artifact of a different conflict-between freedom and slavery or between North and South, if you prefer. Today's conflict is also in a sense between freedom and slavery, but this time it is between civilization and terrorism. New problems often need new solutions, and a new set of rules is needed for this issue. President Bush and Congress should initiate action to enact a new law that would set forth in clear terms a statement of the rules for using military forces for homeland security and for enforcing the laws of the United States.
Again, however, even if it's a paper tiger, there is a strong prohibition contained within that paper tiger. Revisiting it at this point would undoubtedly let the Bushies grab whatever it is that they're so desperate to grab. Rewrite the law in a less dangerous moment. Certainly this isn't that moment.

The U.S. Coast Guard is certainly aware of the lines that we would prefer not to blur (http://www.uscg.mil/hq/g-cp/comrel/factfile/Factcards/PosseComitatus.html ):

"POSSE COMITATUS ACT" (18 USC 1385): A Reconstruction Era criminal law proscribing use of Army (later, Air Force) to "execute the laws" except where expressly authorized by Constitution or Congress. Limit on use of military for civilian law enforcement also applies to Navy by regulation. Dec '81 additional laws were enacted (codified 10 USC 371-78) clarifying permissible military assistance to civilian law enforcement agencies--including the Coast Guard--especially in combating drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance (e.g., use of facilities, vessels, aircraft, intelligence, tech aid, surveillance, etc.) while generally prohibiting direct participation of DoD personnel in law enforcement (e.g., search, seizure, and arrests). For example, Coast Guard Law Enforcement Detachments (LEDETS) serve aboard Navy vessels and perform the actual boardings of interdicted suspect drug smuggling vessels and, if needed, arrest their crews). Positive results have been realized especially from Navy ship/aircraft involvement.
And that's the issue, in a nutshell. Of all the administrations that we might extend the power of the military within the United States, this is the one least trustworthy to be given that power. Right now, according to at least one nationally recognized poll, more than seven in ten Americans say the country is on the wrong track, and two in three disapprove of Bush's job performance as president.

As his base erodes, giving broad domestic authority would seems counter-intuitive (ain't THAT an understatement!), at best.

But the real truth is this: the power of Posse Comitatus lies in American attitudes, not in American statutes. It is deeply (and falsely, evidently) held that the president is prohibited from using the military on U.S. soil, and that's an old and justified attitude.

So, the Colonel is smart, but I'm not sure he's wise.

Somewhere along the line, we lost that fundamental distinction. It is smart to change the Posse Comitatus Act to ensure that it does what we think it does (but doesn't). But it is wise to continue to act as though that prohibition were real. And to make sure that people "get" the fundamental principle that we all agree with: political issues will NEVER again be solved internally via armed force. Political issues will be solved politically. And you don't send people you've trained to be killers in to accomplish the opposite task, and NOT expect another Fiesta de FUBAR from FEMA and the Feds.

Just this once, wouldn't it be better to choose "wise" over "smart"?

So, no, Mr. President. You can't use the Marines to combat Bird Flu in Biloxi, you can't use airborne troops to battle avian flu in Boise. You need to use the CDC to deal with pandemics and FEMA to deal with emergencies.

That's what they were DESIGNED for. 95% of all FEMA employees in the recent festival of FUBAR were employed in the same agency when it was highly effective under Clinton, so the failing MUST be management. And this same management wants to now add the armed forces to the mix?

What a recipe for disaster.

Thursday, October 06, 2005

We can retire a hoary cliche of science fiction films: the monster/catastrophe has been discovered. The intrepid scientists are flown to Washington, D.C. to brief the President (usually shot from behind in a massive chair). And as the impending doom is explained, one of the President's advisors opines, "We can't tell the public. General PANIC will ensue!!!"

All nod gravely.

Well, sorry. Fails the Reality Check altogether.

THIS president (sic) would run from the room gleefully, to crow to the assembled press, "Looks like the sky is falling! Run away! Flee! Run for your lives!"

Yesterday's press briefing -- when the biggest liar we've seen in many a year wasn't saying that he knew "the heart" of his Medusa-like Supreme Court nominee -- should have been characterized by the headline: SOMETHING NEW TO BE TERRIFIED ABOUT.

Yes, the little president who cried 9-11, the apostle of terrification had found a NEW catastrophe to frighten people with: the Bird Flu.

Clearly it's part of his strategery (sic).

Regular readers of this little blog will recall that we raised a red flag when, during the misbuttoned New Orleans speech (is it a coincidence that in the same week, allegations that Bush has been drinking again came out?) Bush quietly floated the notion that the armed forces were best suited to handle emergencies.

Here, from http://www.antiwar.com/bock/?articleid=7468
President Bush, showing in full bloom the instincts that make it clear that whatever he is politically he is not a conservative of the traditional limited-government or Constitutionalist variety, has lofted a trial balloon to promote the idea of having the military play a more extensive, earlier and perhaps even primary role in handling future disasters. The fact that he has mentioned it more than once, and that press secretary Scott McClellan has discussed both that idea and the idea of bypassing governors when disaster strikes, suggests that the notion is not just something that popped into his head on the spur of the moment.

The president (like most presidents but to an exaggerated degree) almost always seeks to expand and enhance the power of the national government when an opportunity presents itself in which such power grabs can seem like a relatively logical response. [Alan Brown, "Posse Comitatus: Remembering Why," October 1, 2005]
Now, it's the avian flu. After Tuesday's press conference, Google shows over 4500 news articles related to avian flu. Suddenly we are stirred into panic by PLAGUE!

Or, in the infinitely craven manner of our American Political Euphemistics, "a potential pandemic." Can't call it "plague," can't call it an "epidemic," or anything like that. Nope, it's a "pandemic" which is frightening, but not TOO frightening.

Got it? Plague! Epidemic! Disease! Death! Fear! Terror!

Now, can any serious, sober-minded individual doubt that the epidemiological armed forces assertion Tuesday was not part of that same "campaign" (when the Bushies are confronted by a crisis of governance, they begin a campaign) begun with the Katrina speech?
Bush urges larger role for military
NEWSDAY, September 26, 2005


WASHINGTON -- Seeking to head off a replay of Hurricane Katrina foul-ups, President George W. Bush yesterday called on Congress to consider giving the U.S. military a leading role in recovery efforts in a catastrophic natural disaster or terrorist attack, a break with precedent sure to spark controversy [...] "The president's talking about considering a situation where you need a clear line of authority," McClellan said. "And it's the Department of Defense that has the capability to do that ... to be able to do it quickly for the initial time period you need to stabilize the situation."
And remember this part of the speech, invoking a DIFFERENT terror ...
"Yet the system, at every level of government, was not well-coordinated, and was overwhelmed in the first few days. It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces -- the institution of our government most capable of massive logistical operations on a moment's notice. Four years after the frightening experience of September the 11th, Americans have every right to expect a more effective response in a time of emergency."
Compare to this Tuesday's statement:

QUESTION: Mr. President, you've been thinking a lot about pandemic flu and the risks in the United States if that should occur.

I was wondering, Secretary Leavitt has said that first responders in the states and local governments are not prepared for something like that. To what extent are you concerned about that after Katrina and Rita?

And is that one of the reasons you're interested in the idea of using defense assets to respond to something as broad and long-lasting as a flu might be?

BUSH: Yes. Thank you for the question.

I am concerned about avian flu. I'm concerned about what an avian flu outbreak could mean for the United States and the world ... And who best to be able to effect a quarantine?

One option is the use of a military that's able to plan and move. So that's why I put it on the table. I think it's an important debate for Congress to have.

What's really interesting about the exchange was the "planted" nature of the question, and Bush's steamrolling a reporter who asked a question BEFORE he could "put on the table" another trial balloon:

I noticed the other day, evidently, some governors didn't like it. I understand that. I was the commander in chief of the National Guard and proudly so. And, frankly, I didn't want the president telling me how to be the commander in chief of the Texas Guard.

But Congress needs to take a look at circumstances that may need to vest the capacity of the president to move beyond that debate. And one such catastrophe or one such challenge could be an avian flu outbreak.


BUSH: Wait a minute, this is an important subject.

Bush then recites a canned and memorized litany of carefully chosen reasons to be afraid of avian flu (thus, the 4500 Google news stories) and concludes with this:
I take this issue very seriously, and I appreciate you bringing it to our attention.

The people of the country ought to rest assured that we're doing everything we can. We're watching it. We're careful. We're in communications with the world.

I'm not predicting an outbreak. I'm just suggesting to you that we better be thinking about it. And we are. And we're more than thinking about it, we're trying to put plans in place.

And one of the plans -- back to where your original question came -- was, you know, if we need to take some significant action, how best to do so. And I think the president ought to have all options on the table to understand what the consequences are -- all assets on the table, not options -- assets on the table to be able to deal with something this significant. [Transcript from CQ Transcriptions via AP]
But this Katrina/Avian flu linkage has been in the pipeline for a few weeks, now. Listen to this:
Friday, September 16, 2005; 5:31 PM
(Transcript via the WASHINGTON POST)

BUSH: ... But I do think they ought to seriously consider the fact that there are a storm, for example, of a certain category which will require an overwhelming response by government that can only be provided by, say, the United States military, through NORTHCOM, because of its ability to muster logistics and supplies so quickly.

And that's what I want Congress to consider. And I think it's very important that Congress consider this.

It's important for us to learn from the storm what could have been done better, for example, and apply that to other types of situations, such as a pandemic.

At the U.N., I talked about avian flu; we need to take it seriously.

I talked to Vladimir about avian flu. I talked to other world leaders about the potential outbreak of avian flu. If avian flu were to hit this country, do we have the proper response mechanisms; does the federal government have the authorities necessary to make certain decisions?

And this storm will give us an opportunity to review all different types of circumstances to make sure that the president has the capacity to react....
Now, is this "muster logistics and supplies quickly" a logical necessity or corollary?

Hell no.

We HAVE an emergency agency tasked already. It is called "The Centers for Disease Control" (the CDC) headquartered in Atlanta, Georgia. It represents the collective medical wisdom of a century of public health medicine in the United States, going back to "Typhoid Mary."

What insane response to a potential epidemic is it to immediately call for the "armed forces" due to their "logistical" superiority?

I've got news for you, Mr. Bush: "logistics" simply means "distribution." "Resources" merely means warehousing. McDonalds, Budweiser and, yes, even Wal-Mart all thrive because of their superior "logistics."

The main problems are transportation and warehousing, and the armed forces have never been particularly good at either, at least as compared to the private sector, as anyone who has ever been IN the military can attest. The levels of waste, gross incompetence, and generalized FUBAR can snowball massively. On the other hand, McDonalds, Budweiser and Wal-Mart would go out of business if their logistics were as snarled as the armed forces often manage to be.

Here's a good example of those "logistics": during the months before Pearl Harbor, the quartermaster at the U.S. base at Corregidor, in the Philippines found that they had far too much gasoline, and far too few oil drums. So, he requisitioned half again as many oil drums as were already at the base. EMPTY oil drums.

The Army promptly sent the oil drums. All of them full.

As a result, the troops had more gasoline than they knew what to do with, and the hundred-day resistance of Corregidor (prior to its surrender, and the Death March to Bataan) was, in great part, carried out with improvised gasoline weapons.

That's the army logistics that Bush suggests would conquer avian flu, and relieve natural disasters. The same army logistics that still hasn't delivered body armor, or HumVee armor, and can't even figure out how to reimburse troops for their privately purchased armor, more than a year after Congress approved reimbursement, and two and a half years after the troops went into combat! Military.com reports:
Troops Wait for Body Armor Reimbursements

Nearly a year after Congress demanded action, the Pentagon has still failed to figure out a way to reimburse soldiers for body armor and equipment they purchased to better protect themselves while serving in Iraq

Can't you just imagine these "logistical" wizards getting flu vaccine to critical locations?

On the other hand, the clear intent of this latest "campaign" is to get congress to repeal the Posse Comitatus Act of 1879 -- even though it's not actually important whether they do or not.

Here is that act, in its entirety:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Title 18, U.S. Code, Section 1385
You lawyers out there will instantly note that it says nothing about the Marines, Navy or Coast Guard. But, worse, while this is the focal point of the seemingly-irrational Bush attack, and demand for broad, new "emergency" powers, really, he doesn't need do much more than send in the armed forces and dare congress, the courts and the public to oppose his fait accompli. After all, it's what he's successfully done ever since his botched and tragi-comic response to September 11 -- a shameful moment that he now seems to own. It is mentioned in virtually every speech that he makes, and in every major speech that he makes, usually multiple times, and whether or not it makes sense.

Remember, in New Orleans, talking about a HURRICANE (that he'd all but ignored, please note), he STILL found a way to invoke September Eleven.

And now, "avian flu" is the excuse for additional, domestic presidential authority to use the armed forces as a tool of policy.

As though they could set up a perimeter, and shoot the virii as they swam by. The "Shock & Awe" campaign we were promised seems to have been directed at US, not at the Iraqis. Only it ought to be more precisely characterized as "Scare and Grab": First they scare us, then they grab more power.

The rest of the story tomorrow, but, for today, at least we know that somewhere, in a black-and-white 1950s film alternate universe, a group of square-jawed scientists in prim lab coats are looking out a window that contains either the Capitol building, or the Washington Monument, and tapping their foreheads with their pipestems.

One of them might say: "Gosh. I thought creating a public panic was a BAD thing. Shows what I know. Janet, let's get into the lab and start working on the antidote."

"Oh, Brad," a shapely but white-lab-coated assistant coos with nearly as much concern as sex appeal, "do you think we can succeed?"

"I don't know, Janet. But if anyone can beat the Avian Flu, Doctor Hausenfeffer and General Mortimer can. Let's get cracking."

The only noise in reply is the sound of high heels clicking on the immaculately polished linoleum floor.


Tuesday, October 04, 2005

You've got to admit, George W. Bush is loathe to share the spotlight.

First, when the Senate confirmed John Roberts as the new Chief Justice, Bush made sure that he was sworn in at the White House. There was the obligatory "photo essay" on the White House site, and all of the photos have George in them -- even the one where Roberts was sworn in. And, there's that first "nomination" photo, with the Currier & Ives kids clinging to the Nancy Reagan power-suit pink wife. But George is in the center. Oh, and check out the top logo "JUDICIAL NOMINATIONS" on the White House subpage.

[ http://www.whitehouse.gov/president/gallery/photoessay/roberts/index.html ]

The photo at:


I'm da BOSS, baby!

is particularly egregious. Under the caption "The New Supreme Court Chief Justice" the following caption appears:

President George W. Bush shakes hands with his Supreme Court Justice Nominee John Roberts after his remarks on the State Floor of the White House, Tuesday evening, July 19, 2005.
But the photo shows a center stage Bush, behind the podium, Presidential Emblem blaring in front, shaking hands with Roberts. The body language of the photo clearly shows that Bush is the Alpha Male, condescending to shake the hand of his stiff, formal, slightly bowing inferior, Roberts. Clearly the photo, taken months before the confirmation, shows the disparity between the two men -- Bush the Patron, Roberts the grateful vassal. But there is a subtle lie there -- and an odd sort of truth, as well -- in that the caption creates the context that Roberts will REMAIN subservient to Patron Bush.

The unconscious arrogance of posting this photo in the gallery showing Roberts' investiture is the mind-set of the Mad King, George. And it smacks of Divine Right, as per usual.

An analogous (though more extreme) photo would be, say, Daddy Bush holding Dubya in his swaddling clothes, with a caption, "former President George H.W. Bush holds his son, George W. Bush, the President Elect." Would we see such a photo? Not in a Dubya Administration. Pecking order here is all.

And there is that "Alpha" legerdemain even in the photo of the "swearing in" with the caption:

President George W. Bush watches Thursday, Sept. 29, 2005 in the East Room of the White House in Washington, as Judge John G. Roberts is sworn-in as the 17th Chief Justice of the United States by Associate Supreme Court Justice John Paul Stevens. Judge Roberts' wife Jane is seen holding the Bible.

I'm da GIANT BOSS, baby!

Go ahead. Take a close look. At the far left, dominating the page like a gilded drop-capital on an illuminated manuscript, closer to the camera and photographed from a kneeling height (by White House photographer/propagandist Eric Draper), shooting up from a child's height -- using that old Hollywood western trick -- Bush occupies fully 7/8ths of the HEIGHT of the frame (and a lion's share of the "mass" of the photo). Center frame, John Roberts and his wife (in Nancy Reagan Red) occupying slightly less than 3/4ths of the frame's height (and significantly less "mass"). On the far right, Justice John Paul Stevens is still smaller, perhaps 2/3rds the height of the frame, but, significantly, HALF the mass of the "giant" George W. Bush opposite him!

Get it? Bush the giant DOMINATES the dwarfed figures who are ordered by their importance. Roberts is next in size, and significantly smaller. Almost the same size is his wife, Jane Sullivan Roberts, holding the Bible, and significantly smaller than THEM is the senior Justice of the Supreme Court, John Paul Stevens. The implication is that "I, George Dubya Bush, MADE this happen."

The rest are just window dressing.

Bush is surrounded, left and right, by SEVEN U.S. flags, with an eighth hidden behind his gigantic presence. By contrast, Roberts and his wife are beside one miniature flag (to their right), while there is another behind Stevens (also to his right).

Everything in the photograph is skewed to the "majesty" of Bush, and the smallness of the Supremes -- new and old. It is perhaps unconscious, but then, this is a "photo op" administration that arranges Bush's head to frame as a "fifth head" on Mount Rushmore. It stuffs Cathedrals and Equestrian Statues of Andy Jackson into frame with him for Katrina addresses, and hires barges to place spotlights on, so that Bush could appear in front of a dramatically illuminated Statue of Liberty in a night address from New York after 9-11.

Now, if you doubt me on the photographic trickery in that photo, take a look at the photo on the bottom of the page of the speech "President's Remarks at Swearing-In Ceremony of Chief Justice Roberts," which is a photo from another angle by White House propagandist/photog Paul Morse. Same event, different lens, different angle, fairly traditional shot of the swearing in, with Bush included at stage left.

Da Boss watches the Oath

And that was only Thursday. Bush then took his taxpayer-supplied SUV (er, Marine One) and flew to Camp David for more vacation time. But, as noted here, he flew back on Sunday, to attend the Red Mass at the Saint Matthew the Apostle Cathedral in Washington, D.C. (where the funeral of William Rehnquist had been held days ago).

Though not a Catholic, Bush attended the "Red Mass" and was prominently photographed with Roberts and Washington D.C. Cardinal Theodore E. McCarrick, archbishop of Washington, on the steps of the cathedral. Naturally, he took center stage at the event. And was in the foreground in the pictures on the steps.

And then, on the First Monday in October -- surely the most important day of John Roberts' life, and likely always to be -- and for the opening of the Supreme Court year, Bush attended the opening "by invitation only" investiture of Roberts.

Happily, Roberts appeared, Reuters reports, wearing a plain black robe: "Roberts, who spoke of the need of judges to be modest before his confirmation, entered the courtroom with his eight fellow justices dressed in a plain black robe like them.

"Gone were the four gold stripes Rehnquist added to each sleeve before presiding over the Senate impeachment trial of President Bill Clinton in 1999 -- an adornment inspired by a costume in a Gilbert and Sullivan comic opera."

(We will pass over the disgusting pandering and continuing photo-op use of Roberts' "family" --the two adopted blonde children and an attorney-wife -- with both having married only, finally, in their FORTIES. This was clearly to appeal to the base, and show that Roberts is "family friendly," even if it is an ersatz "family").

Naturally, Bush's presence warped the event to his "giganticness" or, perhaps, his "juggernautousity." He may work out, but his ego seems to suffer from a chronic and debilitating obesity. Its corpulence was, however, to reveal itself in even greater rotundity throughout the day.

Because, even though this was Roberts' day, and it was the Supreme Court's day, Jealous George decided to trump both, and take center stage, yet some more.

At 8 a.m. Washington time (an hour before the Investiture), our very own Canker of Corpulent Conceit trumped Roberts' day, and the Supreme Court's new term.

He nominated his former secretary to the Supreme Court, INSTANTLY raising questions as to her qualification (she has zero judicial chops, not even a Justice of the Peace), and, by implication, raising questions as to ROBERTS' qualifications.

I don't know about you, but if some asshole decided to upstage me on the most important day of my life with the sad, pathetic circus of Harriet Meirs, another crony in a sea of cronism, I'd be pissed off as hell.

Bush managed to shove his choice into the leadership of the third co-equal branch of government (even as the leadership of the FIRST co-equal branch were, respectively, indicted for money-laundering and investigated for a multi-million dollar insider trading deal on his family's stock), and now with utter indelicacy, had decided to continue to hog the spotlight with his choice for another open seat on the Court.

You'd think that sheerest politesse would dictate that he move his metaphorically corpulent ass out of the way for just one day (after all, the Supremes weren't going to be at work the next day, for Rosh Hashanah, the Jewish New Year) before going back into photo op mode.

But no. Starting a new "campaign" was too damned important, and I found it astonishing that the Google News page had ZERO references to the opening of the new Supreme Court term, but literally thousands of references to Bush's surprise nomination of the least qualified potential nominee on the "short list." Indeed, Harriet Miers had been the person in charge of vetting the other "short list" nominee possibilities, and, as Dick Cheney had emerged from the Veep vetting process as the Veep nominee, so Miers ended up as the vetter vetted.

Even Reuters noticed: "The ceremony was overshadowed by Bush's early morning announcement that he had selected White House counsel Harriet Miers to succeed retiring Justice Sandra Day O'Connor, a moderate conservative who often casts the decisive vote on the closely divided court.

"The White House said Bush called Roberts about 7 a.m. with the news."

And Miers had run the "campaign" to get Roberts anointed and appointed. Now that they knew the 'ropes,' it was time to shove another unqualified crony up the collective posterior of the nation. And so they did.

There is zero question (the spin already begins -- but that's for another day) that she was the LEAST qualified potential nominee. No one can question THAT fact. Currently, allegations are being floated that she's a "pioneer" in feminist lawyering, except that, having been the first Dallas Bar Association and, later, Texas Bar Association president, it says more about the progressivity of those who voted her IN, than about her "pioneering."

SLATE writer Dahlia Lithwick reports:


In a delicious double-Cheney, the woman assigned the task of selecting the next associate justice of the Supreme Court ultimately determined that there was no one so qualified as herself. Never mind that probably 49 other women have also served as the first woman president of their state bar associations. Never mind that the credentials Miers brings to the table might have justified labeling her a "pioneer" for women's rights 25 years ago. And never mind that the best thing Bush could manage to say for her this morning was that her mom is proud. The soft bigotry of low expectations ...
When, do you suppose, will we get over the "first woman to ..." syndrome, as though women were freaks of nature, and it is ASTONISHING anymore that one moved into a formerly male position? After thirty-plus years of endless press releases about "firsts" when will the perception stop being "oh my gosh WOW!" and move to the relatively rational, "well, naturally"?
This is not to disparage equality in any wise, but merely to note that the fundamental battle has been won, and while women will still be "the first" such-and-such, with few exceptions, we can now judge women as people, qualified or unqualified, without hinging our entire characterization and raison d'etre on what lies between a person's legs and not on what lies between their EARS.

(With the Bushies, "lies" is the significant term in the equation, of course.)

These "astonishing" firsts will continue to transpire, of course, but it pretty much ceased to astonish a long time ago. A first female president? THAT will be impressive. And that will be genuinely noteworthy: but this "she was the first WOMAN to ever work the enormous Z-29 Trash Compactor at a landfill in a city of over 100,000, West of the Mississippi" is getting tedious and insulting as hell.

You'd think that the inmates were in charge of the asylum.

After all, as an outspoken "tort reform" opponent, as a crypto "pro-lifer," a neo-con and a "pit bull in size 6 shoes" (as Bush has called her) the very notion that Miers is being touted as any sort of "Feminist" trail-blazer is a remarkable and stunning joke.

At best, Meirs is an exploiter of the legitimate gains of feminism, and the Bushies are already engaged in their shameless tokenism in this regard. It is a family trait. And a family institution.

Consider Clarence Thomas.

In order to substitute for the eminantly qualified Thurgood Marshall (who argued Brown v. Board of Education in 1954), Bush found the clod Thomas, who had, again, barely served in a judicial position.

Thomas leaves 2005 Red Mass [AP]


President Reagan offered Thomas a job as the assistant secretary for civil rights in the Department of Education. Thomas accepted the job and Reagan soon promoted him to head the Equal Employment Opportunity Commission (EEOC). As the director of EEOC, Thomas supervised the entire federal efforts to curb discrimination in the workplace. Thomas dramatically changed the practice of the EEOC under his leadership. He abandoned the use of timetables and numeric goals, which allowed companies more flexibility in their hiring of minorities. Thomas also ended the use of class action suits that relied on statistical evidence of discriminatory effects. These changes in EEOC practice angered many civil rights groups. ...

President Bush appointed Thomas to the U.S. Court of Appeals in Washington D.C. in 1990. When Thurgood Marshall retired in 1991, Bush decided to elevate Thomas to the Supreme Court. Thomas' nomination met strong opposition from minority groups who opposed Thomas's conservative views on civil rights. Thomas weathered several days of questioning from the Democrat-controlled Senate Judiciary Committee. He was unwilling to express opinions about policies or approaches to constitutional interpretation. He maintained that he had never formulated a position on the controversial abortion decision, Roe v. Wade.

His questioners were unable to shake him. His nomination seemed assured when a last-minute witness, Professor Anita Hill, came forward with charges of sexual misconduct when she worked for Thomas ten years earlier. The nation seemed transfixed by the ensuing testimony of Hill, then Thomas, and a parade of corroborating witnesses who spoke to a national television audience, preempting afternoon soap operas and competing successfully for viewers against the World Series. After a marathon hearing to explore the Hill charges, the Committee failed to unearth convincing proof of Hill's allegations. The Committee reported the Thomas nomination to the full Senate without a recommendation. In the end, the Senate voted 52 to 48 to confirm Thomas's nomination to the High Court.

Since becoming a justice, Thomas has aligned closely with the far right of the Court.

And the bio includes this little tidbit that you might recall (and note that this Bio was written by a Republican, no Democrat would use the phraseology: "Democrat-controlled" and "Liberals ... did not know what to do.")

As a young lawyer, Thomas aimed at a career outside the ambit of civil rights. However, for his effort, he earned appointment as the heard of the Equal Employment Opportunity Commission. And racial preference ultimately explained Thomas's appointment to the Supreme Court. Although President George Bush stated that he chose Thomas for his legal qualifications, it would take conscious effort to ignore the political pressures on Bush to name a black candidate after the retirement of Thurgood Marshall, the Court's first and only black justice. Thomas' nomination itself threw traditional political loyalties into disarray. Liberals, including the NAACP and Congressional Black Caucus, did not know what to do. Their desire to see a black justice on the Supreme Court competed with their disapproval of Thomas' conservative views. In the end, fearing that a black voice will legitimize the arguments of many white conservatives, the liberals sought to block Thomas' nomination. Conservatives, on the other hand, embraced Thomas. His unlikely supporters included Sen. Strom Thurmond, who had built his earlier political career on a segregationist platform. Finally, Thomas's confirmation hearings cemented the impression that his nomination served to fill an unspoken racial quota on the Supreme Court. Thus, Clarence Thomas joined the Supreme Court under the very shadow of affirmative action that he sought to avoid.
Now, if you need to tie THAT nomination abomination to yesterday's First Monday monstrousity, we need look no further than Armstrong Williams, whom, you might recall, received a quarter of a million dollars to surreptitiously pimp for Bush's "education" agenda as a talking head for CNN and others (illegally, as it turns out):

Love for Sale
THE NEW YORK TIMES, January 27, 2005

I'm herewith resigning as a member of the liberal media elite.

I'm joining up with the conservative media elite.

They get paid better.

First comes news that Armstrong Williams got nearly a quarter of a million from the Education Department to plug No Child Left Behind.

The families of soldiers killed in Iraq get a paltry $12,000. But good publicity? Priceless.

Mr. Williams helped out the first President Bush and Clarence Thomas during the Anita Hill scandal. Mr. Williams, who served as Mr. Thomas's personal assistant at the Equal Employment Opportunity Commission when the future Supreme Court justice was gutting policies that would help blacks, gleefully attacked Professor Hill, saying, "Sister has emotional problems," and telling The Wall Street Journal "there is a thin line between her sanity and insanity."
Black America Web notes, in an article on the Bush/Williams payola scandal:


Williams, 45, a former aide to U.S. Supreme Court Justice Clarence Thomas, first came to the public's attention as a spokesperson during the 1991 Senate confirmation hearings when Professor Anita Hill charged Thomas with sexual harassment. Williams has since gone on to become one of the top black conservative voices in the nation. In addition to his op-ed columns, he hosts "The Right Side"
Of course, The Black Commentator isn't so kind in their assessment of Williams:


[Armstrong] Williams is rich now, totally enmeshed as stakeholder and performer in the interlocking, spaghetti bowl of secular and Christian Right media. He is an indefatigable propagandist and organization-man, constantly spinning a web of connections between himself, the universe of Right foundations and think tanks, and their overlapping Black front organizations, manufactured at the drop of a grant. Williams' public relations firm, the Graham Williams Group, co-founded with Oprah boyfriend Stedman Graham, specializes in serving "public policy organizations" - the institutional Right. He is the Hardest Working Man in Ho' Business.
Williams is a living bridge between Clarence Thomas and Harriet Miers, and it will be interesting to see how he gets out in front of the PR campaign for the new nominee.

And it's already underway. Using "the universe of Right foundations and think tanks" the first website, justicemiers.com went up either within minutes or even prior to Bush's nomination announcement.

An astroturf group called "Progress For America" (note the theft of the term "progress" as in "progressive") which was founded just after Bush's first inauguration, and by Bush's then-campaign manager, as reported by Public Citizen in its "The New Stealth PACs" report (Nader's watch dog group):

PFA's staff is loaded with Republican heavyweights, and the messages it has disseminated have all been pro-GOP.4 PFA's Web site previously described PFA's purpose as "supporting Pres. George Walker Bush's agenda for America."5

Its founder, Tony Feather, was political director of President Bush's 2000 campaign and runs a GOP-aligned political consulting firm, Feather Larson & Synhorst, which provides direct mail and grassroots organizing work for Republican clients, including Bush's 2004 campaign.

Other current and former PFA principals and consultants include lawyer Benjamin Ginsberg, counsel to Bush's 2000 and 2004 campaigns and previously counsel to the RNC and other national Republican fundraising committees; Mark McKinnon, who produced ads for PFA advocating for Bush's tax cut plan in 2001 and is ad director for Bush's re-election campaign; and Chris LaCivita, former political director for the National Republican Senatorial Committee, who serves as executive director of PFA. Feather has left PFA, but LaCivita continues to work out of the offices of Feather's consulting firm. The Web site of Feather Larson & Synhorst listed PFA under the heading of "National Republican Organizations" that are clients of the firm.

An October 2003 party thrown by PFA, at which its fundraising plans were discussed, drew such prominent Republicans as Ken Mehlman, chairman of President Bush's 2004 re-election campaign, Ed Gillespie, chairman of the Republican National Committee, and Grover Norquist, head of Americans for Tax Reform.

PFA appears to have been formed shortly after President Bush's inauguration. In April 2001, the group ran an ad campaign that promoted Bush's plan to cut taxes.12 In June 2001, the group ran a polling operation that was designed to create the perception of grassroots support for Bush's energy plan. After PFA conducted polls over the telephone, the group sent respondents ready-to-sign letters saying that they wanted no price controls or new regulations imposed on electric power companies. The letters were addressed to members of Congress and printed on stationery customized to the respondent.
[ http://www.stealthpacs.org/profile.cfm?Org_ID=34 ]

Now, I checked the "short list" of potential nominees against registered domains on WHOIS, and PFA registered virtually every potential Bush nominee, nearly all in June and July of 2005, e.g. justiceroberts.com; justicethompson.com, justicegonzales.com.

But what's interesting is that only ONE seems to have been registered in late September (on the 29th), which was justicemiers.com, and the website was up, lickety split (by 8 AM PDT, at least) with plenty of resume material and blurbs ("What others are saying about Harriet Miers). Here's the WHOIS domain information:

Whois Output for: justicemiers.com

Domain Name Owner:
Progress for America
PO Box 19242
Washington, DC 20036

Administrative Contact:
Progress for America
McCabe, Brian [BM-424]
PO Box 19242
Washington, DC 20036, US
Phone: 202-572-6255
Email: kschulz@progressforamerica.org

Technical Contact:
Progress for America
McCabe, Brian [BM-424]
PO Box 19242
Washington, DC 20036, US
Phone: 202-572-6255
Email: kschulz@progressforamerica.org

Billing Contact:
Progress for America
McCabe, Brian [BM-424]
PO Box 19242
Washington, DC 20036, US
Phone: 202-572-6255
Email: kschulz@progressforamerica.org

Record Information:
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Do you begin to see a pattern?

Now, can I say that the Bush Administration is creating a "stealth" campaign, and that PFA already was given the heads up on who Harriet Miers was over the weekend so that they could be ready to go with their website?

No. The smoking gun is not present. Perhaps they learned that Miers was on the short list, and had a page to go for whomever the nominee would be. But, given the intimate ties between this bogus "grass roots" organization and Karl Rove's office, the likelihood certainly exists. But that is not fact, it is mere suspicion and guesswork.

Yup: they're "swift boating" in reverse (you have to prove they're Unqualified, and fight the tokenism perception that you're criticizing them BECAUSE of race or gender, when, in actuality, they've been NOMINATED precisely because of race or gender.). In the case of Roberts, yeah, we bought a pig in a poke. Where that leads, we shall see, but at least Roberts was clearly qualified.

Here's the first Press Release from the "official" PFA Miers website:

October 3, 2005

Senators Should Resist Pressure from Liberal Extremists; Stand-Up for Principle, Not Politics

WASHINGTON - Progress for America Inc. (PFA) president Brian McCabe today praised the nomination of Harriet Miers to Associate Justice of the United States Supreme Court and officially launched the website www.justicemiers.com.

"Harriet Miers is a superb choice for Associate Justice of the United States Supreme Court," said Brian McCabe, PFA's president. "Like the late-Chief Justice Rehnquist, she has practical experience outside the bench. Miers is a trailblazer for professional women, having served as the first president of a large Dallas law firm and later, the first woman elected president of the state bar."

Added McCabe: "Miers' nomination comes at a crucial moment in our nation's history. Just days ago, by overwhelmingly confirming Chief Justice Roberts, a vast majority of United States Senators proved they could set bitter partisanship aside and do what was right for America's judiciary."

Said McCabe, "Now, the Senate faces an important test. Will Senators revert back to the days of obstruction and political wrangling, risking the integrity and independence of the nation's high court and hurting the American people?"

"Fair-minded Democrats and Republicans should come together, stand-up for principle, not politics, and give Harriet Miers the fair hearing and fair up-or-down vote she deserves."

For Immediate Release
Contact: Jessica Boulanger 202-777-1569
Miers is another Clarence Thomas: someone reliably angry, conservative and reactionary. She's also, well, let's let the FEMALE writer for SLATE (so as to not prejudice by the gender of the writer), Emily Bazelon, comment on Miers' nomination:


Let-Down Lady
Harriet Miers isn't just no John Roberts. She's no Sandra Day O'Connor.
By Emily Bazelon, Monday, Oct. 3, 2005, at 1:35 PM PT

Not much to write home about

Commentators on the right as well as the left --anyone, really, who thinks a Supreme Court justice should possess a record of world-class distinction -- are groaning over Harriet Miers' nomination. She may turn out to have a great legal mind. She may be a thoughtful, incisive Supreme Court justice. But there's no reason to think so now. The problem isn't that Miers hasn't been a federal judge or a Supreme Court lawyer. It's that she isn't those things and she also doesn't bring with her the breadth of experience that the other justices lack. Can anyone really imagine that she'd be the nominee if she weren't a woman and the president's friend and loyal adviser? Cronyism and affirmative action: It's a nasty mix.
Yup. And, nastiest of all, Bush decided to upstage the Supreme Court, and the new Chief Justice's finest moment. In the literal sense of the term, this has shown naught but contempt for the court, even as Bush pushed forward his latest pig in an even darker poke.

A poke at justice, equity and meritocracy. (From an Administration that has shown naught but contempt for the rule of law from the very beginning, suspending elections, statutes, treaties, regulations and established policies with gay abandon.)

But then, when the least qualified president in American history tries to appoint yet another unqualified crony to a position of grave responsibility, should we be surprised that he evinces no respect for qualification or competence?

After all, he has thoroughly shown himself to possess neither.

Much as I am wary of John Roberts on the Court, the former editor of the Harvard Law Review certainly deserved better than to be dwarfed and minimized by a "Gentleman's C" student from the Harvard Business School hogging the spotlight. While it was a theft from Roberts of minimal substantive worth, yet, it was larceny of an inestimable spiritual value.

But at least Bush didn't steal Roberts' life -- which nearly 2000 former Americans, tragically, HAVE been relieved of by this usurper.

Sunday, October 02, 2005

Admittedly, yesterday's blog was a tad long (all right: 21 pages in manuscript).

But the whole torrid tale is a sprawling one, and I only kept what I absolutely needed to tell the story. And I figured you'd have two days to read it. Let's face it: if Bush nominates Gonzales for the open Supreme Court seat, we're looking at FIVE Catholic Supreme Court Justices, and that's too much influence for any one religious point of view on the Court. ESPECIALLY when "Red Mass" does its level best to make the point that YOUR IMMORTAL SOUL is at jeopardy in not following the teachings of the Church, esp. as regards "the culture of life."

Coming from a distinctly minority sect within the American panoply of pulpits, it's simply unjustifiable.

As it stands, it's a four-four tie. Four Catholics; four non.

Anyway, rather than break it in two, a wise soul whose counsel I invariably give great weight to said that it needed to posted in ONE part, rather than two.

So, for today, here's Friday's "Week in Review" as heard on KOPT's Friday version of "Breakfast with Nancy." You will have to admit that last week was a bumper crop of self-serving mendacity and rationalization. It's all a soul can do just to keep up.



Right click and "save as." FM quality, 5 minutes, 2.4 meg download.

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