I’ve found the base camp of crazy.

Have a look:

At the time that I am writing this, at least 20 – 30% of Americans understand thus far, know the true nature of President Obama, and the steps he is now taking to destroy freedom.  [...]  A real Second American Revolution is now on the horizon.

We are witnessing the literal death of our Republic, that can come in less than 4 years.

Well, let us start the journey down the road to Revolution in the United States of America.  I believe you will understand it all, and at the very least, by the end of this article you will be ever vigilant.  Perhaps maybe, you’ll even exercise your 2nd Amendment rights, before you can no longer do so.

maybe, just maybe, enough of us can “peacefully” prevent it all.  It is not likely by far, but we can hope.  Marxists won’t go down without a fight so keep this in mind…

Even if you have never fired a weapon, do yourself a favor and exercise your constitutional right to bear arms. Buy a rifle, take some lessons and start up a hunting club. Even if you don’t hunt.  Start a marksmanship club in your college or even high school.  Whatever you do, DO NOT EVER Give up your right to bear arms! Not to any government EVER.

I’m a fan of the 2nd amendment…

the right of the people to keep and bear arms, shall not be infringed.

Every American should be able to own the biggest, sickest, machine-gunniest weapon they can afford. The modern day fight against tyranny will require more than your average hand gun. These people are spot on.

However,

A well regulated militia, being necessary to the security of a free state

A well regulated militia (read: gun-toting populace) should be educated enough to actually recognize tyranny, distinguish between fact and fiction, and exercise some amount of self-control and patience before blowing the roof off the White House. These people are – what’s the opposite of spot on?

These days everybody has a reason for saying that the founders are rolling over in their graves. Here’s mine:

It’s because their Republic is becoming a nation expecting to be ignorant and free.

The hyperbolic rage against the AIG bonuses has finally transformed itself into legislation:

While American International Group Inc.’s chief executive says the firm could recover millions in bonuses via voluntary means, that’s not slowing a legislative effort to recoup the money and shift the incentive-based pay structure traditionally used by financial institutions.

The House is scheduled to act Thursday on legislation (HR 1586) that would impose a 90 percent tax on bonuses given to highly paid employees not only of AIG, but of all recipients of more than $5 billion in federal bailout funds, a group expected to include about a dozen financial institutions, according to Ways and Means Chairman Charles B. Rangel , D-N.Y. Bank of America Corp., Wells Fargo & Co. and Citigroup Inc. would likely be among the affected companies.

“I expect to see an overwhelming vote,” House Majority Leader Steny H. Hoyer , D-Md., told reporters Wednesday afternoon.

Of course you will. The question is whether Congress even has the authority to do pass legislation of this type. Several pundits — here and here for example — have argued that the move would violated several provisions of the Constitution, but the sad truth of the matter is that this Congressional mugging is, most likely, Constitutional.

Bill of Attainder and Ex Post Facto Arguments

Article I, Section 9 of the Constitution includes the following limitation on Congressional power:

No Bill of Attainder or ex post facto Law shall be passed.

A bill of attainder is generally defined as follows:

“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist, The Supreme Court, page 166.

Since the legislation being considered by Congress would apply to anyone who receives a bonus from any entity that received more than $ 5 billion in TARP funds and isn’t just limited to recipients of bonuses from AIG, it is likely general enough to get past any question that it is an unconstitutional Bill of Attainder.

As for the ex post facto argument, the Supreme Court decided way back in 1798 that this provision only applies to criminal laws, not civil laws such as a tax measure, so there would be no bar to the bonus tax even though it is theoretically retroactive.

Other Constitutional Arguments

As the Wall Street Journal notes, the remaining arguments against the bonus tax plan are even weaker. The Contract Clause of Article I, Section 10 only applies to the states; the Takings Clause of the 5th Amendment has never been interpreted to apply to tax laws; and, the Due Process Clause of the 5th Amendment only applies to procedural due process, which would clearly exist in this case.

Finally, a post at Wizbang has also raised an Equal Protection objection to the planned tax:

[W]e might as well mention the concept of Equal Protection, since a law taxing only AIG employees would clearly violate it.

As I noted above, the proposed legislation does not only apply to AIG employees or bonus recipients. Therefore, it’s unlikely that they could make a successful claim that they were being singled out as a class by the law. Even if they were, it’s unlikely that they would be considered a suspect class for equal protection purposes, meaning that the law would only have to pass the fairly liberal rational basis test. Most importantly, though, it’s fairly clear from the language of the Fourteenth Amendment that the Equal Protection Clause only applies to the states:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So, as far as the Constitution goes at least, Congress is, sadly, within it’s authority to tax away to oblivion the AIG bonuses.

Update: Conor Clarke offers this from Harvard Law Professor Laurence Tribe:

I’m in the process of taking a closer look at this issue at the request of several others both in and out of government, but I can tell you this much on the basis of what I know from my past research and experience: It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge.

Such a tax would presumably be leveled on the basis of some criterion sufficiently general to avoid classification as a measure targeting solely a closed class of identified and named individuals. The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective. Moreover, the fact that the aim of such a tax would be manifestly regulatory and fiscal rather than punitive and condemnatory, and that the tax would be part of a measure that would be prospective as well as retroactive in its operation, would serve to blunt the force of any bill of attainder challenge. Finally, such a tax would be devoid of the sting of political retribution and would not partake of the classic “trial by legislature” that the attainder ban was designed to avoid.

All things considered, I believe it very likely that Congress could design a fully constitutional means of clawing back into the federal treasury all amounts paid (or to be paid in the future) in the form of retention bonuses from federal funds disbursed either by the Federal Reserve Board pursuant to legislative authorization tracing to the 1930s or by the Treasury pursuant to the most recently enacted federal bailout and stimulus measures.

It seems to me that the bill passed by the House today fits Tribe’s criteria quite well and that, in the end, any Constitutional objections will end up being entirely academic in nature.

H/T: James Joyner

I like the idea in theory, but I always thought that Governors replaced Senators because it’s too costly to have special elections and somebody needs to serve in the interim.

Still, this seems like the type of amendment that could easily garner bi-partisan support.

From Political Wire:

The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end.

In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators. They should have the same power in the case of unexpected mid term vacancies, so that the Senate is as responsive as possible to the will of the people.

I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute.

So maybe there will be some silver linings in the Blagojevich and Kennedy messes after all.

The 17th Amendment to the U.S. Constitution, adopted in 1913 to require the election of Senators by the people, not by state legislatures, also requires governors to “issue writs of elections” when Senate vacancies occur. It then adds this proviso: “Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

According to Geoghegan, “the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines.” It does not cancel the requirement to “issue writs of elections.”

“Yet the current practice in virtually every state flips the proviso to override the main clause,” Geoghegan notes, a practice that “frustrates the whole democratic thrust of the amendment.”

Geoghegan points out that the Supreme Court has never ruled definitively on this practice, even though its been going on for decades. He says the only precedent comes from a decision by a federal appeals panel (Valenti v. Rockefeller) upholding the Governor of New York’s decision to fill the vacancy created by Robert F. Kennedy’s murder. That decision rested on the fact that Kennedy’s death in June 1968 did not leave enough time to hold a primary prior to an election in November of that year.

This is fascinating. If Geoghegan is right, someone might be able to challenge the constitutionality of Rod Blagojevich’s appointment of Roland Burris (or any other gubernatorial appointment). Any thoughts on this from all the Constitutional scholars out there?

(Visit me at The Purple Center)

It hasn’t reached the mainstream media yet, but in the days since Hillary Clinton’s nomination to be Barack Obama’s Secretary of State became official, there’s been some discussion of a little-known provision in the Constitution that could bar Hillary Clinton from serving at Foggy Bottom:

[S]pecifically, Article One, Section Six, also known as the emoluments clause. (”Emoluments” means things like salaries.) It says that no member of Congress, during the term for which he was elected, shall be named to any office “the emoluments whereof shall have been increased during his term.” This applies, we’re advised, whether the member actually voted on the raises or not.

In Clinton’s case, during her current term in the Senate, which began in January 2007, cabinet salaries were increased from $186,600 to $191,300.

The language of the section itself would seem to be rather clear:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Since the salary for Cabinet Secretaries was increased while Hillary Clinton was a Senator, the Emolument Clause, as it’s called, would seem to apply pretty clearly.

There is a work around, but it’s Constitutionality is dubious:

That “fix” came in 1973, when President Nixon nominated Ohio Sen. William Saxbe (R) to be attorney general after the famed “Saturday Night Massacre” during the Watergate scandal. Saxbe was in the Senate in 1969 when the AG’s pay was raised.

(…)

Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of them who remains in the Senate, said at the time that the Constitution was explicit and “we should not delude the American people into thinking a way can be found around the constitutional obstacle.”

Michael Stokes Paulson, a Law Professor who has written on the application of the Emoluments Clause in the past, says this regarding the Clinton appointment:

The Emoluments Clause of Article I, section 6 provides “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” As I understand it, President Bush’s executive order from earlier this year “encreased” the “Emoluments” (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which “the Emoluments whereof shall have been encreased” during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment … if the Constitution is taken seriously (which it more than occasionally isn’t on these matters, of course).

(…)

Unless one views the Constitution’s rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but “standards” or “principles” to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn’t bet on this actually preventing the appointment, however. It didn’t stop Lloyd Bentsen from becoming Secretary of State [This appears to be a typographical error. Bentsen, of course, was Bill Clinton's first Secretary of the Treasury]. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution’s actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don’t know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.

Paulson’s argument is certainly persuasive, and while it’s unlikely under present circumstances that any Court will entertain a lawsuit seeking to invalidate Clinton’s appoint, it’s fairly clear that if the words of the Constitution are supposed to mean what they say, then Hillary Clinton should not be Secretary of State.

Vladimir Putin continues to consolidate power…

From TNR:

If any proof were needed that the Russian political system operates in its own time-space continuum, it came this morning, when the parliament decided to deal with the country’s economic meltdown by amending its constitution.

The Duma fixed the 1993 text by decoupling presidential and parliamentary elections and approving term extensions for the president, from four to six years.

The amendment, which President Dmitry Medvedev announced on November 5, was discussed for a scant two weeks and passed overwhelmingly: 392 to 57. (Amazingly, those 57 votes came from the Communists.)

The Moscow Times offers dissent, as well as a prediction of decreased Putin favorability in the near future…

This looks as if Putin is carrying out a constitutional junta. The only difference between his junta and the one in Latin American is that Putin is taking pre-emptive steps now to avoid a military coup later. This way he can maintain a semblance of democracy by packaging the coup in constitutional trappings.

Putin loyalists control the Central Election Commission, the major television stations, the main political parties, the Duma, the Federation Council, the military, police and the secret services. And the president, of course, is also Putin’s man.

The only things in Russia that are not under Putin’s control are the dollar, the price of oil, Islamic extremists in the Caucasus and the financial crisis. These are all crucial factors that will determine the country’s political future. As the economy worsens, Putin will receive less support from the upper level of bureaucracy, which up until now has received a generous windfall from high oil prices. As this source of income dries up, so will the elite’s unconditional support for Putin. The elite may continue to support Putin on the surface, but at the same time they will be calculating their personal financial losses as the crisis unfolds. They will also be asking themselves the question, “Perhaps we need a change from the current Chekist leadership?”

Jeezus, let’s hope so.

I agree with both of them, but Ashton more so. The idea that people voted on somebody else’s rights and relationships is crazy.

In the end, I wish the government would get out of the business of marriage and set up a separate civil union system so people could have all the legal rights of marriage without the religious ties. And then people can go get a marriage in a church if they so choose.

My friend and colleague, Lagan Sebert, and I have just published a follow-up on the voting situation in Pennsylvania, arrowing in on a recent legal battle over paper ballots and the Philadelphia City Commission (which has kind of become a peculiar little beat for the ANP, I guess.)

This week, we attended the federal hearing against the Commonwealth of Pennsylvania (filed by the NAACP) and the last public meeting of the Philly City Commissioners before the election. We were surprised to see very few members of media at either meeting–Bob Warner of the Philadelphia Daily News was an exception.

If you like it, please do send this along to other people who might be interested or link to it or embed it on your websites! All ANP content is free for use in newspapers, blogs, television, and radio.

Chaos Looms Over Pennsylvania Vote
By Danielle Ivory on Oct 31, 2008

Philadelphia is shaping up to be a key city in a key battleground state in this election, but machine problems and long lines may plague the polling stations and voter disenfranchisement will be a serious risk. Unfortunately for voters, the people charged with running a smooth election in Philly seem surprisingly unconcerned. Philly’s veritable election czar, Marge Tartaglione (D), in particular, shocked ANP with her comments at a recent hearing. See more videos at the American News Project.

ANP has been investigating the perplexing case of the Philadelphia City Commission for a few weeks.

Click for our original story, Philly Official Scoffs at Voting Problems.

Click for our follow-up, Voters Sue Pennsylvania, Election Official Scoffs.

And click for the judge’s recent ruling in the case of the NAACP v. Cortes.

Follow Danielle’s reporting on twitter.

Follow Lagan’s reporting on twitter.

I’m sorry folks, but the following argument is RIDICULOUS and I can’t believe it’s coming out of the mouth of somebody so close to the presidency…much less the Governor of one of our states.

I mean…WTF?

Palin told WMAL-AM that her criticism of Obama’s associations, like those with 1960s radical Bill Ayers and the Rev. Jeremiah Wright, should not be considered negative attacks. Rather, for reporters or columnists to suggest that it is going negative may constitute an attack that threatens a candidate’s free speech rights under the Constitution, Palin said.

“If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations,” Palin told host Chris Plante, “then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

*sigh*

Does she not get that the 1st Amendment isn’t designed to keep people from getting verbally attacked? In fact, it’s designed to do just the opposite, except that all speech is obviously subject to slander, libel and incitement laws. In other words you can’t print or say false things about somebody or attempt to incite violence or mayhem through your speech. But apart from that, it’s all free.

And the additional idea that she would attempt to convince base Republicans that criticism of her attacks is somehow infringing upon her 1st Amendment rights? That’s is absolutely shameful.

I hope this woman disappears back to Alaska and is completely forgotten. She is such a joke.

Doug breaks it down…

Palin’s statement is particularly interesting mostly because it ends up becoming a fundamental misreading of what Jefferson meant when he said that the First Amendment had erected a “wall of separation” between the political and clerical worlds — namely his assertion, widely accepted during the Founding Era, that true religious liberty required that the state and the church remain separate entities.

Just as the state should not get involved in or seek to influence matters belonging to the religious world, the church should not get involved in or seek to influence matters that are the purview of civil government.

Correct, it works both ways, although nowadays there’s much more focus around making sure the church stays out of the government’s space than vice versa.

For five months in 1787, a constitutional convention convened in Philadelphia to revise the Articles of the Confederation. The articles were considered inadequate for the nascent federal government to deal with conflicts such as Shay’s Rebellion. Instead of revising the Articles, the delegates wrote an entirely new document. 221 years ago today – on September 17, 1787 – 39 of the 55 delegates to the convention signed the Constitution of the United States. It is the oldest and shortest Constitution of any major government in the world, and the first to be written by representatives of those who were to be governed.

Before becoming the basis of our government, the Constitution had to be ratified by the states. Having fought to escape the shackles of a distant despotic monarchy, many were understandably leery of a replacing it with a less distant but strong federal government. The document was debated by citizens and leaders in the mass media of the day – newspapers and pamphlets. From About.com:

“In the months that followed, James Madison, Alexander Hamilton and John Jay would write the Federalist Papers in support, while Patrick Henry, Elbridge Gerry, and George Mason would organize the opposition to the new Constitution. By June 21, 1788, nine states had approved the Constitution, finally forming “a more perfect Union.”

James Madison, the “Father of the Constitution” in Federalist #51 argued for the protections provided by the separation of power, checks and balances in the Constitution:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The debate on whether the constitution adequately protects the governed from the government continues to this day. Widener University School of Law has organized an online debate on what the Constitution means to modern Americans. Richard Pildes, Professor of Constitutional Law at New York University School of Law contributes to the debate with a pessimistic analysis “Political parties tilt balance of power“:

“During periods of unified government, in which the same political party controls the House, Senate and the presidency, the president has the capacity to exercise wide-ranging powers without extensive oversight or checking and balancing from the other political institutions of government. The president’s power is thus not static or fixed. Yet neither the Constitution nor our thinking about the presidency has fully come to terms with this truth. Indeed, the Constitution did not contemplate a system of political parties at all. When the Constitution was designed, the existence of parties — factions, in James Madison’s terms — was a sign of a diseased political system. The Constitution was specifically designed to create a system that would transcend parties and minimize their role… the conventional stories we tell about our system of checks and balances, or separation of powers, are not all that realistic in practice. If we continue to believe in the benefits of checks and balances — and I do — we must accept that effective congressional oversight of the president is not likely when the House, Senate, and presidency are in the hands of the same party. We need to modify our institutional structures to find other ways of generating effective checks and balances. The most promising route would be to give the opposition party tools to oversee the president — perhaps the power to call hearings or subpoena witnesses or to audit the government. I do not expect these measures to be adopted. No legislative majority cedes power to the minority.”

However, until such time that additional protections for the governed can be built into the Constitution, we the governed can address this Constitutional defect on our own – by never voting one party into control of the Presidency, Senate, and House or Representatives. By voting for divided government.

Easier said than done, but important to think about.

You might not have noticed, as this was only the third most important story yesterday. Based on television news coverage, the most important political story yesterday was Rev. Jesse Jackson caught making crude remarks about Obama on an open mike. The second most important story was John McCain joking about cigarette exports killing Iranians. The third most important story was our elected representatives voting to restrict 4th Amendment protections that have been afforded Americans since the founding of the country and the crafting of the Bill of Rights.

Who cares? After all, what did the founding fathers know about the need to protect individual civil liberties against the overreach of power by a unitary executive? Clearly our Congress and President, and the two senators who want to be our next President know better than the founders what civil protections we really need. So protections that have been in place for over two hundred years are now less than they were. Activities by our government to eavesdrop on conversations of Americans that were illegal yesterday, are legal today (or as soon as GWB signs it into law).

I am not going to belabor this. We have beat this to death at Donklephant in previous posts here, here and here. Just one point – When smart people on the right, left, and academia agree that this is a very bad bill that erodes our freedom and constitutional protections, it does not mean this is a good compromise. It means this is a very bad bill that erodes our freedom and constitutional protections.

No I’m not feeling great. I feel about the way the Senator Russ Feingold looks in this interview on MSNBC’s Coutdown yesterday, where he says:

“This is a sad moment, it really is a black mark, not only on Democrats, but on the Congress, and the history of the United States. This is one of the greatest assaults on the Constitution in the history of our country.”- Russ Feingold

C’mon Russ! Lighten up! It’s only the Constitution and the Bill of Rights. Sheesh….

[OK. I give up. There is supposed to be an MSNBC Video Embedded here, but I can't get it to embed. You'll have to go HERE to see the video.]

Some thoughts on this interview. Feingold expresses a hope that a future Congress will take this up and restore our Fourth Amendment protections. What do you think the likelihood that any President or Congress will voluntarily reopen this political can of worms?

I actually believe it will happen, but not without a powerful catalyst. It will happen only after the inevitable abuse of these new powers are revealed to the American people.

Why inevitable? Because every single expansion of government power over citizens is ultimately abused by those entrusted with that power. I don’t know when that will happen, but I know it will happen.

Outrage over executive branch abuse of eavesdropping and domestic surveillance was the reason for the original FISA legislation in 1978. When FISA was modified by the Patriot Act, the loosened restrictions were immediately abused by the FBI, and that abuse continued for years. With these even looser restrictions, there will be more abuse. It is only a question of time, a question of how the abuse will be revealed and a question of how badly and how many Americans must be hurt before enough outraged Americans force Congress to act. Perhaps the abuse will happen under President Obama. Perhaps the abuse will happen under President McCain. Perhaps it will happen under a President four eight or twelve years from now. But it will happen.

It is also interesting that Feingold declined to answer Maddow’s question about the real liklihood of an Obama presidency pursuing criminal liability against the Telcos and administration officials that broke the law. This, as you may recall, was Obama’s CYA fig leaf rationalization for explicitly breaking his promise to filibuster any FISA provision that included Telecom immunity. Feingold did not decline to answer because he does not know the answer. He knows. He knows that Obama is being disingenuous and there is no possibility of a criminal prosecution for law-breaking activity that Congress just made legal.

No, I don’t feel great. I particularly don’t feel like the idea of contributing or supporting either of the Tweedledum Tweedledee presidential candidates who have so little respect for our Constitution and the civil liberties of Americans.

^{UPDATED: Found some more links for the next round of opposition to this “assault on the Constitution”, and have edited the last paragraph to reflect the same.}

Contributions? Instead of the candidates, I’ll make contributions to organizations like the Strange Bedfellows Alliance, a progressive / libertarian alliance that will target legislators that voted to reduce my freedoms. Since the Executive and Legislative branch have no respect for the Constitution, I can only hope the Judicial branch will. The ACLU and Electronic Freedom Foundation are going to test the constitutionality of this law in the courts. I’ve never contributed to the ACLU before, but I will now and I will get behind this program and suggest you do also.

There. I feel a little better, now.

But first, for context, a brief outline of the story so far:

• Barack Obama expresses strong opposition to the Bush FISA executive eavesdropping power expansion with the Telco Immunity provision.
• Keith Olbermann broadcasts a “Special Comment” calling the FISA bill with Telco Immunity fascist.
• Obama flip-flops announcing support for virtually identical FISA “compromise” with Telco Immunity.
• Olbermann and Jonathon Alter praise Obama for “not cowering to the left” on the FISA compromise.
• Glenn Greenwald calls out Olbermann on his hypocritical coverage of Obama.
• Keith Olbermann says he did not read Greenwald, but responds anyway.
• Greenwald does read Olbermann’s post and dismantles his response.
• Olberman says, “Lets change the subject.“
• Olbermann broadcasts this “Special Comment” on Monday saying “Senator Obama wants his cake and eat it too”:

Frankly, I found the Olbermann comment to be somewhat incoherent, as he felt compelled to wrap extensive verbal caveats while inserting two or three shots at Republicans for every mild criticism of the Obama flip-flop. That said, he explicitly calls for Obama to take the “second chance” to do the right thing and either – join the opposition planning to filibuster the bill -or- explicitly state that an Obama administration will pursue a criminal prosecution of the Bush administration and Telco companies for violations of the original FISA law.

Olbermann makes much of the fact that the bill – (both the versions that Obama opposes and supports) only provides immunity from civil prosecution. Greenwald maintains that the possibility of criminal prosecution under this bill to be a fantasy, and remains focused on the bigger issue of stopping the expansion of executive power. In any case, I fully expect Obama to embrace neither of Olbermann’s suggestions. Having already flip-flopped once on the issue, it just would not be politic for him to flop-flip back.

More importantly, Olbermann’s commentary and the Olbermann/Greenwald debate has helped keep a spotlight on this important issue and the impending vote. This has all been made possible because a few Senators like Feingold and Dodd (and unlike Obama) were willing to show real leadership on this issue and keep principle ahead of politics. They succeeded in delaying the the FISA vote until after the Independence Day holiday, allowing time for opposition to build. Stopping or modifying the bill still seems unlikely, but this is politics, and there is no telling what might happen. Who knows? Our elected representatives might even decide to defend and protect the Constitution.

Here we go again. On Wednesday Olbermann completed a pair of remarkably similar and truly jaw-dropping contradictory broadcasts on the issue of FISA, telecom immunity, and of course, Obama’s support for same.

Glenn Greenwald called him on it in his Thursday column “Keith Olbermann: Then and Now“, and kicked off a left field food fight in the process. I’ve quoted Glenn extensively in my exchange with Justin on FISA this week, so thought this might be of interest here:

“On January 31 of this year, Keith Olbermann donned his most serious face and most indignant voice tone to rail against George Bush for supporting telecom immunity and revisions to FISA. In a 10-minute “Special Comment,” the MSNBC star condemned Bush for wanting to “retroactively immunize corporate criminals,” and said that telecom immunity is “an ex post facto law, which would clear the phone giants from responsibility for their systematic, aggressive and blatant collaboration with [Bush's] illegal and unjustified spying on Americans under this flimsy guise of looking for any terrorists who are stupid enough to make a collect call or send a mass email.” Olbermann added that telecom amnesty was a “shameless, breathless, literally textbook example of Fascism — the merged efforts of government and corporations that answer to no government.”… Strong and righteous words indeed. But that was five whole months ago, when George Bush was urging enactment of a law with retroactive immunity and a lessening of FISA protections. Now that Barack Obama supports a law that does the same thing — and now that Obama justifies that support by claiming that this bill is necessary to keep us Safe from the Terrorists — everything has changed. Last night, Olbermann invited Newsweek’s Jonathan Alter onto his show to discuss Obama’s support for the FISA and telecom amnesty bill (video of the segment is here). There wasn’t a syllable uttered about “immunizing corporate criminals” or “textbook examples of Fascism” or the Third Reich. There wasn’t a word of rational criticism of the bill either. Instead, the two media stars jointly hailed Obama’s bravery and strength — as evidenced by his “standing up to the left” in order to support this important centrist FISA compromise…”

No need to add to Greenwald’s analysis, but I will state that in my unbiased opinion, Olbermann’s exhibition was one of the most egregious displays of gratuitous world-class journalistic ass-kissing I have ever seen. I can’t figure out how to embed the videos here, but they are both in my x-post at “Divided We Stand United We Fall” if you want to see them side by side.

Glenn’s concluding comments:

“What’s much more notable is Olbermann’s full-scale reversal on how he talks about these measures now that Obama — rather than George Bush — supports them. On an almost nightly basis, Olbermann mocks Congressional Democrats as being weak and complicit for failing to stand up to Bush lawbreaking; now that Obama does it, it’s proof that Obama won’t “cower.” Grave warning on Olbermann’s show that telecom amnesty and FISA revisions were hallmarks of Bush Fascism instantaneously transformed into a celebration that Obama, by supporting the same things, was leading a courageous, centrist crusade in defense of our Constitution. Is that really what anyone wants — transferring blind devotion from George Bush to Barack Obama? Are we hoping for a Fox News for Obama, that glorifies everything he says and whitewashes everything he does?”

This is where it gets interesting. Keith Olbermann then posts a diary on Kos to defend himself:

“I don’t know much about Mr. Greenwald and I didn’t read his full piece, but I do know that the snippet he’s taken out of the transcript of my conversation with Jon Alter last night makes it sound like I was saying defying the left was a good thing. I was actually contrasting it to not cowering to the Republicans, simply as a different thing. Same point, in essence, tonight with John Harwood. It certainly does underscore the degree to which the presumptive nominee trusts his own mind. Did Mr. Greenwald note that I asked if we shouldn’t worry that this Obamaian certainty could turn into something like President “My Way Or The Highway” Bush, or did he leave that out? I do think Mr. Greenwald’s suggestion of some kind of betrayal on my part is simplistic and childish. I’ll take the Dean interpretation of this. If it isn’t the Senator’s game plan, he’ll catch hell from me about it later.”

So - It is on. But in this battle of intellects, I’m afraid that Olbermann brought a knife to a gunfight. Greenwald replies today:

“Olbermman then denies that he was justifying Obama’s support for the FISA bill but then goes on to do exactly that:

“Seriously, there is little in the polls to suggest McCain has anything to run with other than terror . . . . So why hand them a brick to hit him with — Obama Voted Against FISA — if voting Aye enhances his chances of getting himself his own Attorney General to prosecute FISA.” – KO

How can Olbermann accuse me of distorting his commentary and deny that he’s rationalizing Obama’s support for the bill and then write the above — which does nothing but justify Obama’s support for the bill? That’s exactly the mentality I was criticizing yesterday — that Obama should be excused for supporting this assault on core Constitutional liberties and the rule of law because doing so is necessary to avoid appearing Weak on Terrorism. That’s the behavior which Obama has repeatedly vowed to reject, and it’s that precise mentality that has to be extinguished, not perpetuated. What is most disturbing here is that people (including Olbermann) who for so long have vehemently criticized Democratic leaders for capitulating to Bush and trampling on the Constitution out of fear of looking “Weak” are now invoking that very excuse to justify what Obama is doing here (that’s what Olbermann explicitly did in his Kos reply). To excuse Obama’s conduct on that basis is to perpetuate Democratic complicity. Obama had — and will continue to have — a critical opportunity to reject and debunk that rancid framework, and it is his embrace of that framework here (”I’m going to give Bush what he wants and trample on the Constitution in order to avoid being ‘weak’”) that makes what Obama has done here so harmful and worthy of criticism.”

Heh. Your turn Keith.

Here’s the decision…

The court’s 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Yes, maybe the framers didn’t intend what the SCOTUS upheld today, but the language in the 2nd Amendment is very loose, and I find it extremely hard to believe that they didn’t intend for every single person to at least have this baseline right. Wouldn’t you want everybody to have access to a firearm just in case you would have to form militias quickly?

So, given that this amendment hasn’t been truly scrutinized by the courts since 1791, I’d hope we can settle on it and move on.

Ahh, but nothing is that easy. McCain is already hammering Obama today on a similar law in Chicago…

“For the first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers,” McCain said in a statement.

He criticized Sen. Barack Obama for not signing a bipartisan amicus brief supporting the ruling later issued by the Supreme Court, and singled out the Chicago ban in describing what the ruling should change.

“Today’s ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans,” McCain said in the statement.

And you know what…McCain is right. The SCOTUS decision at least puts a bullseye on the Chicago ban, and you can bet that it’ll be up for review very soon.

More as it develops…

As a self described “libertarian-leaning” independent, I have struggled to find satisfaction in the voting booth. I would like to vote for candidates that are not only consistent with my beliefs [To whit: Federal government should be limited in scope, provide for common defense, protect and respect individual rights, spend and tax in a fiscally responsible manner, provide effective oversight of elected and appointed representatives, legislate carefully and slowly, and pass only laws that are tempered in the fire of partisan debate], but also offer hope of having a practical real-world policy impact on the operation of our federal government. This latter criteria excludes voting for a third party like the Libertarians, which, while more consistent with my views, are impotent in implementing actual policy and therefore IMHO a wasted vote.

The closest I have come to a satisfactory voting strategy was outlined in my post “Voting By Objective“. The objectives listed above have historically been most closely addressed by voting for divided government. Problem being, this voting strategy requires holding your nose and frequently casting a vote for candidates with the stench of statist big government policies that are hostile to constitutional freedoms.

Case in point, the 2008 presumptive nominees for President.

^{[Long post continues below the fold and/or at Divided We Stand United We Fall]}

Lets start with the Republican John McCain. How can a limited government advocate support a candidate who has little or no regard for either the First Amendment or Habeas Corpus? George Will asks the right question of John McCain:

“McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, “quote ‘First Amendment rights.’ ” Now he dismissively speaks of “so-called, quote ‘habeas corpus suits.’ ” He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as “the great writ of liberty.” No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims? As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, “is a separation of powers principle” involving the judicial and executive branches. The latter cannot be the only judge of its own judgment. n Marbury v. Madison (1803), which launched and validated judicial supervision of America’s democratic government, Chief Justice John Marshall asked: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.

But what of the Democratic alternative, Barack Obama? Last week, exercising political triangulation calculus than makes the Clinton’s campaign efforts look like remedial arithmetic, he reversed himself on the FISA “compromise” and announced his support for the bill. In so doing, he threw his support behind a broad expansion of the powers of the executive branch that tramples the 4th amendment, fails to hold anyone accountable for violations of the existing law of the land, and undermines the very concept of Rule of Law. There are many left-of-center blogs, columnists, blogs, organizations, politicians and more blogs that have outlined the problems with this bill, but since we invoked George Will to lecture McCain, we’ll lean on the equally articulate Glenn Greenwald to school Obama:

“It is absolutely false that the only unconstitutional and destructive provision of this “compromise” bill is the telecom amnesty part. It’s true that most people working to defeat the Cheney/Rockefeller bill viewed opposition to telecom amnesty as the most politically potent way to defeat the bill, but the bill’s expansion of warrantless eavesdropping powers vested in the President, and its evisceration of safeguards against abuses of those powers, is at least as long-lasting and destructive as the telecom amnesty provisions. The bill legalizes many of the warrantless eavesdropping activities George Bush secretly and illegally ordered in 2001. Those warrantless eavesdropping powers violate core Fourth Amendment protections. And Barack Obama now supports all of it, and will vote it into law. Those are just facts.“

One has to wonder why Obama would be so cavalier about undermining the fourth amendment and the rule of law. I suspect this has something to do with it:

Out of eight categories listed in the poll, Terrorism is the only one where the electorate thinks McCain would do a better job (outside the poll margin of error). In that category McCain leads by a very large margin. As a consequence we see McCain doubling down on his only strength, and Obama working to shore up his only weakness. The resulting “Alice in Wonderland” spectacle – Our two Presidential candidates are competing on the basis of who is willing to remove more constitutional protections and take more of our rights in the name of protecting us from terrorism. Pick your poison.

This is just depressing as hell. Jack Balkin has a different but equally depressing explanation:

“Barack Obama plans to be the next President of the United States. Once he becomes President, he will be in the same position as George W. Bush: he wants all the power he needs to protect the country… Perhaps it gives a bit too much power to the executive. But he plans to be the executive, and he can institute internal checks within the Executive Branch that can keep it from violating civil liberties as he understands them. And not to put too fine a point on it, once he becomes president, he will likely see civil liberties issues from a different perspective anyway.”

So, between the sitting President and the two candidates to replace him, all believe in expanding the power of the executive branch, even to the point of overruling the protections of the Bill of Rights as they see fit. All three – Bush, McCain, Obama. Actions speak louder than words, and when the rubber meets the road on real bills like the compromise FISA bill, there is no qualitative difference on their views of the unitary executive, regardless of what they say to gullible supporters.

What is Obama’s explanation for this support? His rationale is explicit:

“Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people.”

He then goes on to explain why he is supporting a bill that does not respect the rule of law, nor the privacy and civil liberties of the American people. Let us be clear – Obama is explicitly and consciously playing the terrorism “Fear Card” to justify this decision. It is the exact same formulation he has campaigned against in the Bush administration, and the very thing that he decried as the “old politics of fear” when criticizing the Clinton “Its 3 AM” ad.

Particularly mystifying are the Obama supporters who were so critical of the Clinton ad (JG), but now give Obama a free pass (JG) on a FISA flip flop that invokes the same fears, but with far more serious and long lasting implications for the rule of law.

Glenn Greenwald goes on to warn of the dangers in this kind of uncritical support for a candidate:

“…no good comes from lending uncritical support to a political leader, or cheering them on when they do bad and destructive things, or using twisted rationalizations to justify their full-scale assault on your core political values. The overriding lesson of the last seven years is that political figures, more than they need anything else, need checks and limits. That is just as important to keep in mind — probably more so — when you love or revere a political leader as it is when you detest one… What Barack Obama did here was wrong and destructive. He’s supporting a bill that is a full-scale assault on our Constitution and an endorsement of the premise that our laws can be broken by the political and corporate elite whenever the scary specter of The Terrorists can be invoked to justify it… In 1799, Thomas Jefferson echoed that: “Free government is founded in jealousy, not confidence. . . . Let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitutions.” Between (a) relying on the limitations imposed by the Constitution or (b) placing faith in the promises of a political leader not to abuse his unchecked power, it isn’t really a difficult choice — at least it ought not to be, no matter who the political leader in question happens to be.”

One of the most seductive arguments against voting to maintain divided government is framed like this: “We need a single party Democratic government for a while, just to restore balance and undo the damage that has been created by the eight years of George W. Bush and six years of single party Republican rule.” That illusion has now been shattered. Instead of undoing the damage, we are seeing the Democratic Party leadership of Nancy Pelosi, Steny Hoyer, Harry Reid and the Democratic presumptive nominee Barack Obama lead a Democratic Senate and Democratic House of Representatives to make the problem worse, by dramatically expanding the power of the Presidency at the expense of the Constitution, the courts, the Congress and Bill of Rights. That is the meaning of the compromise FISA bill that Obama and McCain support.

Voting for an all Democratic Government in 2009 with expanded majorities and a potential filibuster-proof Senate is not the answer. It will certainly create more problems than it solves.

For more, Damozel at The Moderate Voice has a good compilation of blogger reaction to the Obama flip-flop, while Ed Morrissey at HotAir outlines Obama’s history on the issue.

What to do?

If you are frustrated as I am about the choices we have for President, and reluctant to contribute to either campaign, Political Action Committees focused on specific issues like stopping the FISA compromise bill provide a more satisfying alternative. A tip of the hat to Ka1igu1a at Freedom Democrat for pointing me to one very interesting example that brings progressives and libertarians together in common cause on FISA – TheStrangeBedfellows Alliance:

“… the Blue America PAC is targeting Blue Dog Democrats like Steny Hoyer for their continued roles as complicit enablers of Bush’s sham FISA bill. However, it should be noted that a more encompassing movement effort has recently sprung up, forged by both progressive and libertarians that will be using the Blue America PAC as a Phase I of of a multi-Phase strategy. It’s being dubbed the Strange Bedfellows alliance. The headliners in this alliance are the ACLU, Glenn Greenwald, The Ron Paul Money Bomb team over at Break the Matrix, Jane Hamsher of Firedoglake, Matt Stoller of Open Left, and Ari Melber of The Nation.”

FWIW, the alliance now also includes mw at Divided We Stand United We Fall.

If you are not looking to make a contribution, but still want to help fight the FISA compromise that will come to Senate floor this week, McJoan at DailyKos is tracking the progress of the bill and key Senators to contact. Although the fix is in, and it is likely that this pig will pass (after some Kabuki theater by Harry Reid and Barack Obama to provide themselves political cover) it is important to keep a very bright spotlight on the players in this show.

Will’s complaint is as much about McCain’s hyperbole as it is about McCain’s opposition to the ruling. As Will notes, this is not a clear-cut matter and people of good will can certainly disagree. Will begins by suggestion some court decisions far worse than the most recent one and then duly notes the problems in the decision:

Critics, including Chief Justice John Roberts in dissent, are correct that the court’s decision clouds more things than it clarifies. Is the “complete and total” U.S. control of Guantanamo a solid-enough criterion to prevent the habeas right from being extended to other U.S. facilities around the world where enemy combatants are or might be held? Are habeas rights the only constitutional protections that prevail at Guantanamo? If there are others, how many? All of them? If so, can there be trials by military commissions, which permit hearsay evidence and evidence produced by coercion?

But Will also notes that habeas rights are a pretty essential part to maintaining a restrained government.

No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’ power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims?

One of the more difficult questions we face in this war on terror is how to handle our prisoners at Guantanamo and, more generally, how to handle all current and future terrorists we capture. Do we treat the whole matter as part of our criminal justice system and have the military hand over all detainees to federal law enforcement? Or do we develop something more comprehensive that acknowledges this conflict is a little more broad and complex than some federal sting operation?

We must balance our need to protect our nation and citizens with our moral obligation to ensure we are not imprisoning innocent men and women. While I’m concerned with the logic behind the Supreme Court’s ruling as well as the fuzzy precedent it has created, I have to agree with George Will that granting habeas rights is an understandable position, in that it sets the legal bar at a bare minimum without de facto granting detainees full access to our court system.

Is it the best compromise? No – court-created compromises are usually more imperfect than even the imperfect compromises of legislatures. This is why Congress should now step in and rework the rules to accommodate habeas rights without junking the tribunal system which took so long to create. Instead of spouting off, McCain should use his role in the Senate to make the best out of the Court’s complicated ruling. But I guess in election year politics, “energizing the base” with hyperbolic rhetoric is more important than real governance.

From Swampland comes this transcript of McCain’s statements during a town hall…

The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country. Sen. Graham and Sen. Lieberman and I had worked very hard to make sure that we didn’t torture any prisoners, that we didn’t mistreat them, that we abided by the Geneva Conventions, which applies to all prisoners.

But we also made it perfectly clear, and I won’t go through all the legislation we passed, and the prohibition against torture, but we made it very clear that these are enemy combatants, these are people who are not citizens, they do not and never have been given the rights that citizens of this country have.

And my friends there are some bad people down there. There are some bad people. So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases.

Oh…the horror! Habeas suits! Yeah, our legal system will really get crushed under the weight of all of those…

The thing missing from his remarks is the idea that these people aren’t just getting the chance to file frivolous lawsuits…they’re getting the chance to file ANY lawsuit because now they actually have access to legal counsel.

Of course Republicans don’t like this because they see enemy combatants as defacto prisoners of war, captured from some mythical country of “Terroristas”, but this isn’t a war against a tactic we can’t detain people indefinitely and deny them access to legal counsel. It just doesn’t work that way. Either they committed a crime we can try them for or they didn’t.

Also, another potential positive to emerge from this decision is now we’ll have to make absolutely sure that the people we’re snatching can actually be tried and convicted. So this ruling may actually put LESS of a burden on us in the long run.

One of the worst decisions in history? Not by a long shot.

Currently, the “Human Rights Courts” in Canada are busy punishing conservative Canadian bloggers because of their opinions. A gentleman by the name of Richard Warman has taken it upon himself to cleanse the nation of viewpoints with which he disagrees and has brought suits against some of Canada’s most popular conservative bloggers and discussion boards, labeling those citizens as “extreme right-wing” and thus punishable by the Human Rights Courts. Warman can do this because Canada has no immutable right to free speech. Classical Values has a comprehensive post on the situation and I urge you to read it. He does a far better job than I can in dealing with Canadian law and laying out the details of this matter.

This story is not just an opportunity for us to be thankful for our Constitution. It’s a moment for us to realize why we defend the First Amendment, why many of us go out of our way to vigorously support other people’s right to an opinion, even if we find that opinion ignorant, cruel or profoundly distasteful (or all three).

There are people in America who support hate speech laws and such rules exist on many college campuses. The idea is that certain opinions are so dangerous they should be banned entirely, not permitted in intellectual debate or common discourse. That idea is an affront to the very principle behind the First Amendment. As Richard Warman is proving, it only takes one determined, corrupt man to use hate speech laws to punish those with whom he disagrees.

There is no way to protect against the abuse of speech laws. That’s why they’re antithetical to the very meaning of the First Amendment. I’m sorry to see that the Canadian system has fallen into the trap of believing the regulation of speech can be beneficial. It’s not. It’s inherently oppressive. Fortunately we Americans have firmer protections. But that doesn’t mean we shouldn’t be vigilant.

Thanks to regular reader Dos for alerting us to this story.