December 4, 2020 / by 


The Wind And The Lion: Ted Kennedy Mans Up To Mortality

images.thumbnail.jpegThe question has gone unasked out of respect, or murmured only quietly in back rooms: What about Teddy’s health? Nobody wanted to be the one to say it in public. Nobody had to; once again Ted Kennedy is ahead of us. In a posting late Wednesday at the Boston Globe, comes news that Senator Edward M. Kennedy has authored a letter to Massachusetts Governor Deval Patrick and the Massachusetts Congressional leaders requesting that provisions be made for his successor.

Literally generations of politically active American citizens have been motivated to study and participate in the political process by the men–and women–of the Kennedy family (I am one). Since the tragedies of the 60s however, the Old Lion of the family, and, indeed, the US Senate (and Democratic politics as a whole), has been Edward M. Kennedy. The sturm and drang of the current health care fight? That has been his battle cry for decades. Barack Obama? Likely still a Senator if Ted Kennedy had endorsed Hillary Clinton instead. Name an important piece of social legislation passed in the last four plus decades and his fingerprints are on it.

So the question of "what if" about his health is an unpleasant, emotional and difficult one. But recent events have made the question undeniably germane. Senator Kennedy wasn’t present for the Judiciary Committee consideration of Sonia Sotomayor’s Supreme Court nomination; you knew he wanted to be there, but his absence was understandable. When he also was absent from the Senate floor for the historic confirmation vote for Sotomayor, the first Hispanic American elevated to the Court, you had a feeling he was seriously ill. A week later, when he could not attend the presentation when he was awarded the Presidential Medal of Freedom, by Barack Obama, a man he likens to his brother John, you knew it was bad. And then he was absent from the funeral for his sister Eunice. Ted Kennedy always gave the eulogies for Kennedy family members; he always had to, and he was always there. Always. Until now.

From The Globe:

Senator Edward M. Kennedy, in a poignant acknowledgment of his mortality at a critical time in the national health care debate, has privately asked the governor and legislative leaders to change the succession law to guarantee that Massachusetts will not lack a Senate vote when his seat becomes vacant.

In a personal, sometimes wistful letter sent Tuesday to Governor Deval L. Patrick, Senate President Therese Murray, and House Speaker Robert A. DeLeo, Kennedy asks that Patrick be given authority to appoint someone to the seat temporarily before voters choose a new senator in a special election.

Although Kennedy, who is battling brain cancer, does not specifically mention his illness or the health care debate raging in Washington, the implication of his letter is clear: He is trying to make sure that the leading cause in his life, better health coverage for all, advances in the event of his death.

The extraordinary action Senator Kennedy requests is necessary because under a 2004 law passed in Massachusetts to prevent the potential that Mitt Romney would get to name a successor to John Kerry if Kerry had been elected President, voters would select Kennedy’s successor in a special election to be held within five months of the vacancy. But the 2004 law makes no provisions for an interim replacement.

“I am now writing to you about an issue that concerns me deeply, the continuity of representation for Massachusetts, should a vacancy occur,’’ Kennedy wrote.

To ensure that the special election is fair, the senator also urged that the governor obtain an “explicit personal commitment’’ from his appointee not to seek the office on a permanent basis.

Separately, a Kennedy family confidant, speaking on the condition of anonymity because the letter was private, said the senator’s wife, Victoria Reggie Kennedy, is not interested in being a temporary appointee or running in a special election.

And, lastly, there was this:

“For almost 47 years, I have had the privilege of representing the people of Massachusetts in the United States Senate,’’ Kennedy wrote in his letter.

Ted Kennedy is still a lion representing the interests of Massachusetts and the country, and still doing so selflessly and honorably by laying contingency plans for his own succession and drawing the sting from everybody else in addressing the subject head on. When the wind comes for the Lion he wants to insure we are ready. And that there is a vote for healthcare.

Live-Blogging Scrapple for Breakfast


(Hot photo credit to Spencer Ackerman)

Ari Melber starts by asking Scrapple who is he and why he is here.

Scrapple starts by raising choice.

Apparently now if you vote for saving the American economy it makes you a "de facto Democrat."

Specter is filibustering. Ari just broke in: "We’re not in the Senate, we’re not going to filibuster."

You should trust me because I have a record of being a boy scout. Okay. He didn’t say that.

Shorter Scrapple: You should trust me because the elite of your party asked me to flip-flop.

Susie rocks the house: You whine and then vote for things.

Scrapple now trying to justify his military commisison vote. Time for Ari to break in to prevent the filibuster again.

Last question, Scrapple tried to argue he didn’t quaver on bills. Now, he’s not answering the question but he’s demonstrating the certified quaver perfectly.

Scrapple doesn’t know from Nate Silver.

Scrapple’s one campaign slogan: I voted for stimulus.

Scrapple pitches stimulus again.

Scrapple says he’s comfortable looking over his right shoulder. Um, Scrapple? That’s your left shoulder.

Scrapple: Data = generalization.

Scrapple: No one in the Democratic caucus has done four town halls.

Um, Scrapple? You’re in the Democratic caucus, remember.

Come on Susie, now’s the time for the Clarence Thomas smack-down.

Scrapple: I think Grassley’s wrong on his granny comments. I’ll call him and tell him.

Call him now, we say.

Specter tried Grassley, but did not get him on the phone. Says he’ll call back in half and hour.

McCain Is A Clunker, Can I Trade Him In?

graphic by twolf

graphic by twolf

John Sidney McCain III, the blue blooded husband of a beer heiress, has decided he will be the Republican face of opposition to continuance of the wildly successful Cash For Clunkers program. The man who cannot remember how many houses he owns is going to kill the program helping regular people put a decent and efficient new car in front of their humble middle class homes. From FOX News:

Fox has learned that Sen. John McCain, R-AZ, will oppose any move to take up the House bill. Around here, we call that a filibuster.

McCain told Fox earlier today, "I not only wouldn’t vote for the extra two billion, I was opposed to the initial billion. "

McCain, the 2008 GOP presidential nominee who ran as a deficit hawk, said, "Within a few weeks we will see that this process was abused by speculators and people who took advantage of what is basically a huge government subsidy of corporations that they already own. "I can’t imagine that any taxpayer of America would have thought that the TARP, the financial recovery money, would be used now to subsidize the sale of automobiles in America."

This is a pile of bunk; John McCain is not a deficit hawk, he is a narcissistic publicity hawk and he hasn’t had enough lately and saw an opening. What is really rotten, however, is he is trying to take down the one program that has demonstrated immediate and tangible systemic benefits. In other words, the precise stimulus the economy is dying for.

Wildly successful is almost an understatement for the Cash For Clunkers program as Marcy indicated in this post. Quoting from the official website:

According to, 79% of clunkers being traded in so far are SUVs, trucks and vans with over 100,000 miles and most are being replaced with new passenger vehicles. The average age of a trade-in model is almost 13 years old, and the average odometer reading is approximately 138,000 miles. The most popular clunker trades are Chevrolet, Ford and Dodge and 84 percent of the new vehicles purchased are passenger cars.

This is economic stimulus at its finest. Customers are flocking to dealerships, dealerships are selling cars, service bays are active, manufacturers are moving inventory, financing shops are making loans, accessories are being sold, manufacturing suppliers are being paid and kept in business – it is one heck of an economic spur to a major sector of the economy and a fantastic lead in to the critical opening of the traditional new model year that annually starts in mid to late September.

The effect is palpable; you can see it and feel it at the local level. Drive by your local dealerships, if they are anything like here, they have sprung aback to life. Pay attention to your local advertising, both print and broadcast; if anything like here, it has sprung back to life with the wares and praises of local auto dealerships, probably the most important local advertising revenue extant. You do not have to love the car business to understand what this means to the economy.

But the stingy old narcissistic gluehorse John McCain wants none of that; he wants to kill all the economic activity I can see and feel right here in Phoenix Arizona. But, take it from a native Arizonan, that is typical John McCain, he has never cared a lick about anything but his own self aggrandizement.

It is, however, shocking in one regard; namely McCain has a history of loving sweet governmental automotive subsidy programs to the point of personally abusing them. From a post I did during the election on this exact topic, "Did John McCain Almost Bankrupt Arizona With His Electric Cars?":

Back in 2000, Arizona came within a whisker of financial collapse and bankruptcy. The cause was a corrupt state Alternative Fuels Program engineered by McCain’s best friend and political protege, Jeff Groscost, then speaker of the Arizona House of Representatives. That program turned

…what was supposed to be a modest $3 million initiative to encourage the use of alternative-fuel vehicles (AFVs) into a half-billion-dollar boondoggle that nearly bankrupted the state and earned it national belly laughs.

Not only was Groscost manager of McCain’s 2000 Arizona Presidential Campaign, the boondoggle legislation was the fruit of McCain’s 2000 Campaign:

Groscost, who has been a paid political consultant to presidential candidate Sen. John McCain, said the campaign was frustrated when it could not find an alternative-fuel vehicle.

Yesterday Newsweek reported that, along with his ten other cars, John McCain owns "three 2000 NEV Gem electric vehicles."

In Arizona, most NEV Gem electric cars are 2000 models sold under the Alternative Fuels program that nearly bankrupted the state. Curiously, John McCain owns three of them. Did he capitalize on the boondoggle his protege crafted to have the taxpayers of Arizona heavily subsidize three new cars?

The answer to the question posed by the earlier post is an unqualified yes. He soaks his own state when it is headed towards insolvency and now wants to deny one of the most vital sectors of the local economy, as in every state in the union, the greater auto business including suppliers, the meager funds necessary to make a running start to the new model year and a return to prosperity. Not to mention prevent the benefit to the ecosystem that will come from the removal of hundreds of thousands of gas guzzling pollutant emitting vehicles from the road and replacement with modern efficient machinery. It is the McCain way.

I have a better idea; let’s not just re-up funding for the existing program; as voters let us demand the existing Cash For Clunkers program be expanded to replace worn out senators!

Are you like me with my Senator John McCain? Is your Senator too old, too stupid, his ideas too worn out? Do you suffer from frequent policy breakdowns and betrayals? How much of a deficit would you accept to replace your clunker old gluehorse Senator?

That question should be being asked by millions of Americans who just learned that Republican Senators are planning to block one of the most popular economic/jobs stimulus programs Congress has enacted in the last fifty years, Cash for Clunkers. Let’s turn in all the creaky old goats and disable them. Starting with John McCain.

[h/t Scarecrow]

Dodd and Conrad: The Appearance Of Impropriety

Both Connecticut’s Chris Dodd and North Dakota’s Kent Conrad steadfastly deny any knowledge or fact of preferential treatment in their real estate loans from Countrywide Mortgage, but the fact the story keeps hanging around is disquieting. And apparently it has been doing quite a bit more than hanging around, there have been hearings and testimony. From MSNBC:

Despite their denials, influential Democratic Sens. Kent Conrad and Chris Dodd were told from the start they were getting VIP mortgage discounts from one of the nation’s largest lenders, the official who handled their loans has told Congress in secret testimony.

The next day, Feinberg testified before the Senate Ethics Committee, an indication the panel is actively investigating two of the chamber’s more powerful members

Both senators were VIP borrowers in the program known as "friends" of Angelo. Angelo Mozilo was chief executive of Countrywide, which played a big part in the foreclosure crisis triggered by defaults on subprime loans. The Calabasas, Calif.-based company was bought last July by Bank of America Corp. for about $2.5 billion.

Countrywide VIPs, Feinberg told the committees, received discounts on rates, fees and points. Dodd received a break when Countrywide counted both his Connecticut and Washington homes as primary owner-occupied residences — a fiction, according to Feinberg. Conrad received a type of commercial loan that he was told Countrywide didn’t offer.

Two internal Countrywide documents in Dodd’s case and one in Conrad’s appear to contradict their statements about what they knew about their VIP loans.

First off, let’s be clear, there has been no finding of wrongdoing as to either Dodd or Conrad. Secondly, even if it were to be all true, it does not look like the benefits were particularly valuable monetarily. Still, it is tiring seeing the constant privileged status our elected officials in Washington claim for themselves.

These are two critical Senators for the Democratic majority, and here we are in the biggest legislative struggle perhaps in decades over healthcare reform talking about their ethical propriety. It is not helpful. I don’t care if the two Senators’ gain was penny ante in the long run, it is the fact they were brazen enough to think it okay to take a little cut. Because as members of the "world’s greatest deliberative body" they from all appearances simply felt entitled. Like Kobe Bryant and Ben Roethlisberger, even if they are totally innocent, the mere fact that they allowed themselves to be placed in such a position speaks ill.

It has, at a minimum, the appearance of impropriety and, right now, that is too much.


Senate Hate Crimes Bill Threatens First Amendment

There are inherent First Amendment and equal protection issues with any "hate crime" legislation as I pointed out when Eric Holder started aggressively pushing Congress for passage of a new bill. That said, if you are going to enact such laws, they must be targeted, rational and designed to effect the result desired and not any other. Such laws should not be vague and expansive, should not be able to be wielded by prosecutors as selective bludgeons and should not infringe on First Amendment rights to free speech and association.

Late Thursday night, the Senate passed a Hate Crimes Bill that arguably violates all of the above.

People attacked because of their sexual orientation or gender would receive federal protections under a Senate-approved measure that significantly expands the reach of hate crimes law.

The Senate bill also would make it easier for federal prosecutors to step in when state or local authorities are unable or unwilling to pursue hate crimes.

"The Senate made a strong statement this evening that hate crimes have no place in America," Senate Majority Leader Harry Reid, D-Nev., said after the chamber voted Thursday to attach the legislation as an amendment to a $680 billion defense spending bill expected to be completed next week.

The House in April approved a similar bill and President Barack Obama has urged Congress to send him hate crimes legislation, presenting the best scenario for the measure to become law since Sen. Edward Kennedy, D-Mass., first introduced it more than a decade ago.

According to the ACLU however, the Senate botched the job:

The Senate late Thursday passed an amendment as part of the Department of Defense Authorization bill that would give the federal government new authority to prosecute certain violent acts based on race, color, national origin, religion, gender, sexual orientation, gender identity and disability. However, the Senate version of the hate crimes bill lacks the strong protections for speech and association included in legislation passed by the House of Representatives in June. The American Civil Liberties Union believes that without the speech and association protections included in the House bill, the Senate hate crimes legislation could have a chilling effect on constitutionally protected speech and membership.

The following can be attributed to Christopher Anders, ACLU Senior Legislative Counsel:

“It has been our experience that the fight for better and stronger civil rights protections is more successful when free speech and association are protected along the way. Fierce protection of free speech rights has historically created the space for the improvement of civil rights protections. Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association. An otherwise unremarkable violent crime should not become a federal hate crime simply because the defendant visited the wrong website, belonged to a group espousing bigotry, or subscribed to a magazine promoting discriminatory views, however wrong and repugnant those beliefs may be. We urge Congress to instead adopt the House version of the hate crimes bill, which protects both civil rights and free speech and association.”

The actual bill passed is S 909 and it passed 63-28. The better House version is H.S. 1913. Basically, the upshot is that the scope of the legislation is so broad that it arguably can be used to criminalize and potentially prosecute protected free speech and association. This is a very real fear, witness how fast one lobby, the fundamentalist religious sect, went to work on the issue; they had an amendment tacked on prior to allowing the bill to reach a vote:

The amendment, which was introduced by Senator Sam Brownback (R-Kan.), essentially clarifies that speech from the pulpit, electronic or otherwise, remain protected unless its intent was to cause violence.

The amendment says that nothing "shall be construed or applied in a manner that infringes the rights under the First Amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion was not intended to 1) plan or prepare for an act of physical violence or 2) incite an imminent act of physical violence against another."

So the lethal right to life zealots will bath themselves in the trappings of the church and march on. No such protections for other groups though; in fact, the Senate version arguably expands the ability to use the legislation as a selective tool. The main provision contained in the House version the ACLU is complaining of being omitted from the Senate bill passed last night is as follows:

Evidence of expression or association of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing the impeachment of a witness.

Interestingly enough, this provision was contained in the original Senate draft of the legislation in 2007. The ACLU feels the language is necessary to block admissibility of evidence of speech and association not specifically related to a crime, and that the legislation without such language could chill constitutionally protected speech and association. How did it come to be removed? By relentless lobbying by the Department of Justice (Hey isn’t that Eric Holder guy over there?). From a July 14 ACLU letter to Senators:

Although the Justice Department has argued that it usually avoids attempting to introduce evidence proving nothing more than that a person holds racist or other bigoted views, it has lobbied hard this year against having the Senate include the House-passed speech and association protections in the Senate bill. The Justice Department is specifically seeking to use evidence of a person’s speech or association even if the evidence does not specifically relate to the offense.

The problem today is that there is an increasing focus on “combating hate,” fighting “hate groups,” and identifying alleged perpetrators by their membership in such groups–even in the absence of any link between membership in the group and the violent act. Those arguments are very different from the arguments made in support of the criminal civil rights statute when it passed as an important part of the historic Civil Rights Act of 1968.

There is a danger that–after years of debate focused on combating “hate”–courts, litigants, and jurors applying a federal hate crime statute could be more likely to believe that speech-related evidence that is unrelated to the chain of events leading to a violent act is a proper basis for proving the intentional selection element of the offense. The House-passed evidentiary provision would stop the temptation for prosecutors to focus on proving the selection element by showing “guilt by association” with groups whose bigoted views we may all find repugnant, but which may have had no role in committing the violent act.

The ACLU is exactly correct here, the provision, as elegantly brief as it is, is critical. It is my experience that prosecutors use hate crimes statutes much more as leverage to force plea agreements and prove defendants guilty simply on the basis of non-conforming speech and membership in gangs, fringe political groups and the like than they do for the righteous purpose intended. The DOJ is point blankedly saying that is exactly what they desire to do and the Senators allowing this are carrying their ill-conceived water.

Congressmen Conyers, Scott and Frank have vowed to keep the language included in any final hate crimes legislation, they deserve accolades for their efforts, and the DOJ and Senate deserve jeers for theirs. And there is another bastardization of the process in the offing too. On Monday, Senator Jeff Sessions is having his amendment to include the death penalty added to the penalty provisions of the Senate Hate Crimes Bill voted on.

Quite frankly, it is arguable whether hate crimes laws are appropriate in the first instance, but if they are to exist, they must not be allowed to be tools of selective prosecution and prosecution of thought and status crimes, and there is no need for the conservative fixation on the death penalty to be involved either.

What Pelosi, Rockefeller & Harman Could Have Done

There has been an ongoing discussion for the last two weeks or so about the briefings that congressional leaders were allegedly given regarding the Bush/Cheney torture program (See for instance here, here, here, here and here) and what Congressmembers like Pelosi, Rockefeller, Harman and Graham could have done to fight the malfeasance of Bush and Cheney. This post will explain what they could have done.

I promised a discussion on the speech and debate clause and what was possible, at least theoretically, for Nancy Pelosi, Jane Harman, Jay Rockefeller, Bob Graham, or any Congressmember that had knowledge, to have done about the wrongs of the Bush Cheney Administration, even in relation to national security level topics.

The speech and debate clause is found in Article I, section 6 of the Constitution and reads as follows:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The key wording is the last part "…and for any Speech or Debate in either House, they shall not be questioned in any other Place." The down and dirty is that congressmembers (and in certain cases key staff) cannot be questioned or held to answer in any forum, civil, criminal or otherwise, for speech and/or discussion regarding legitimate interests and business of Congress; such conduct occurring on the floor or in committee is absolutely privileged.

Let’s have a look at the history of the Speech and Debate Clause. In United States v. Gillock, 445 U.S. 360 (1980), the Supreme Court stated, "The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances." Indeed, it was framed by the founders as one of the seminal checks and balances against the power and greed of the Executive Branch. You know, exactly what Congress was staring at, and cowering from, with the Bush/Cheney crew. The Congressional privilege has been discussed and upheld in a long and storied line of cases.

Interpretation of this clause has centered on a definition of “legitimate legislative activity.” Such activity had been commonly held to extend beyond debate on the floor of the respective chambers to include views expressed in committee deliberations and reports and to encompass the act of voting as well. In Kilbourn v. Thompson (1881), the Supreme Court gave this clause its broadest interpretation, defining protected actions as “things generally done in a session of [Congress] by one of its members in relation to the business before it” (p. 204).

During the 1970s the Supreme Court considered several cases aimed at narrowing this reading. In Doe v. McMillan (1973), the Court limited protection for the views expressed within congressional reports only to those documents disseminated within Congress. Allowing a suit against the Government Printing Office for publishing a committee report that allegedly contained defamatory material, the Court ruled somewhat ambiguously that dissemination in normal channels outside Congress was not protected. Under a related subsequent decision, Hutchinson v. Proxmire (1979), members became liable for their views as expressed through press releases and newsletters. The Court found that although these means of communication are valuable and desirable, neither forms an integral part of Congress’s deliberative process. Here the Court distinguished between the indispensable “informing function,” under which Congress informs itself in an effort to produce better legislation, and the less vital “informing function” of reporting its activities to the public.

In United States v. Brewster (1972), the Court significantly reduced the Speech or Debate Clause’s protection. Former U.S. senator Daniel Brewster had been indicted for allegedly taking a bribe to influence the performance of his official legislative duties. Brewster sought protection under the clause to declare the indictment invalid. In upholding the indictment, the Court ruled that “Taking a bribe is, obviously, no part of the legislative process or function” (p. 526). The clause was read as prohibiting an inquiry into the motivation for performing specific legislative acts, but it provides no restraint against an inquiry into taking a bribe for specific legislative actions. The subject of the inquiry against Senator Brewster was the bribe, rather than the legislative objective the bribe was intended to promote.

Clearly the most notorious case involving the Speech and Debate Clause, and the most pertinent to our discussion, is United States v. Gravel, 406 US 606 (1972). Gravel is Senator Mike Gravel of Alaska and this is the infamous "Pentagon Papers Case". Gravel arose out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret-Sensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U.S.C. § 641), the gathering and transmitting of national defense information (18 U.S.C. § 793), the concealment or removal of public records or documents (18 U.S.C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U.S.C. § 371).

…the last portion of § 6 affords Members of Congress another vital privilege—they may not be questioned in any other place for any speech or debate in either House. The claim is not that while one part of § 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer—either in terms of questions or in terms of defending himself from prosecution—for the events that occurred at the subcommittee meeting.

Prior cases have read the Speech or Debate Clause ‘broadly to effectuate its purposes,’ United States v. Johnson, 383 U.S., at 180, 86 S.Ct. at 755, and have included within its reach anything ‘generally done in a session of the House by one of its members in relation to the business before it.’ Kilbourn v. Thompson, 103 U.S., at 204; United States v. Johnson, 383 U.S., at 179, 86 S.Ct. at 755. Thus, voting by Members and committee reports are protected; and we recognize today—as the Court has recognized before, Kilbourn v. Thompson, 103 U.S., at 204; Tenney v. Brandhove, 341 U.S. 367, 377—378, 71 S.Ct. 783, 788—789, 95 L.Ed. 1019 (1951)—that a Member’s conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the ‘sphere of legitimate legislative activity.’ Id., at 376, 71 S.Ct., at 788.

What this means is that there existed a defined path for Pelosi, Harman, Rockefeller, Graham et. al to address their concerns and whistleblow the wrongs they were witnessing without any threat of prosecution, fines or other retribution. Jello Jay Rockefeller did not have to constrain his outrage to his hoky handwritten letter to Dick Cheney (yeah, like that was going to work). Jane Harman did not have to restrict her claimed outrage to her weak letter. Nancy Pelosi and Bob Graham didn’t have to sit on their hands and effectively do nothing.

The next question you will ask is what about secrecy oaths taken in relation to their Intel Committee positions. In fact, Jane Harman has tried to explain away her lack of action thusly:

When you serve on intelligence committee you sign a second oath — one of secrecy,” she said. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.

Indeed such secrecy oaths are administered, for solemn reasons – national security is of prime importance and there truly are a plethora of things that should not be publicly discussed. That said, any such "secrecy oath" for the Intel responsibilities is absolutely subordinate to the primacy of the prophylactic Speech and Debate clause protection in Article 1, Section 6. The decision in US v. Gravel is in accord. So, despite the bleating protestations of Harman and the others, they do not get off the hook via "secrecy oaths". They took an oath to defend the Constitution from all perils, that is primary, and they failed it.

As Stan Brand, a former General Counsel to the US House of Representatives and noted Congressional procedure and privilege expert, has said:

Under Gravel, Senator Rockefeller (nor any other member of Congress) need not have been either so secretive or reticent to use official channels to question the surveillance program, or for that matter any other subject of national security. Indeed, he could have officially communicated with relevant Executive officials, shared that correspondence with his colleagues on the Committee, or even taken to the Senate floor to speak about the issue. (Whether such conduct would have been consistent with Senate and Committee rules governing classified information would be a matter only for the Senate and could play no part in any Executive branch examination of his conduct). The "Speech or Debate" clause protection is based on its English antecedent, the product of several centuries struggle by Parliament to attain independence from the Crown. In this country it was adopted without debate at the constitutional convention to provide the same independence to legislators to be free from intimidation by the executive, or accountability before the judiciary.

The Rockefeller episode illustrates how too often legislators are cowed into acquiescence or timid supplications with respect to issues involving classified documents or matters by an aggressive or threatening Executive branch. Of course, over 30 year ago in a case eerily reminiscent of the current controversies, the Supreme Court laid to rest the notion that legislators could be questioned by the Executive branch for doing their job. Every member of Congress needs to read the Gravel decision to appreciate the broad constitutional protection they have been afforded by the Framers to inquire into the Executive’s administration of our national security apparatus.

Cowed into timid supplicants pretty much sums up what George Bush and Dick Cheney did to to the Congress. In this instance, there were only a handful of Representatives and Senators that could have addressed the ills at hand, and they failed their duty, failed their oath and failed their country. Yes it would have taken a huge "Profile In Courage" for them to have availed themselves of the Speech and Debate privilege and stood in the wells of Congress to right the matter. If they didn’t have the cojones to explain the entire scene, at a minimum they should have made a record that they were being intentionally denied proper Intel Committee briefings, Gang of Eight briefings and Presidential findings; they couldn’t even bring themselves to do that.

Courage is what this country was founded on and propagated by, we can ill afford to be in such short supply of it in the most critical moments when the Constitution is being undermined.

Pelosi’s Advisory On Abu Zubaydah And Torture

As Marcy noted back on April 29th, the issue of Nancy Pelosi’s briefing back in 2002 on the Bush/Cheney torture program, whether or not it was being applied to Abu Zubaydah and, if so, to what extent, has really turned into a he said-she said game. (See also here regarding the Porter Goss offensive against Pelosi and Harman).

So, it should not come as any surprise that yet another missive has been launched in this little passion play. Today’s strike comes courtesy of Rick Klein at ABC News:

ABC News’ Rick Klein reports: House Speaker Nancy Pelosi was briefed on the use of “enhanced interrogation techniques” on terrorist suspect Abu Zubaydah in September 2002, according to a report prepared by the Director of National Intelligence’s office and obtained by ABC News.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. Instead, she has said, she was told only that the Bush administration had legal opinions that would have supported the use of such techniques.

MadDog has slithered into the depths of Human to find what they claim is "the report". He has also given us a hand glossary for the abbreviations. The Washington Post seems to think it is "the report" as well, for what it is worth:

In a 10-page memo outlining an almost seven-year history of classified briefings, intelligence officials said that Pelosi and then-Rep. Porter J. Goss (R-Fla.) were the first two members of Congress briefed on the tactics. Then the ranking member and chairman of the House intelligence committee, respectively, Pelosi and Goss were briefed Sept. 4, 2002, one week before the anniversary of the terrorist attacks of Sept. 11, 2001.

Pelosi has already, of course, issued a denial through a spokesman. More he said-she said. Quite frankly, without more, today’s play should be taken with a grain of salt. Multiple major news organizations have this hot off the press info right after Congress receives it and right wing hit rag Human Events (Jed Babbin) is pitching it as a slam on Pelosi. How very convenient. As further evidence of the need for grains of salt listen to Leon Panetta in his own cover letter transmitted with "the report":

“This letter presents the most thorough information we have on dates, locations, and names of all Members of Congress who were briefed by the CIA on enhanced interrogation techniques. This information, however, is drawn from the past files of the CIA and represents [memorandums for the record] completed at the time and notes that summarized the best recollections of those individuals. In the end, you and the Committee will have to determine whether this information is an accurate summary of what actually happened. We can make the MFRs available at CIA for staff review.” (Emphasis added)

As should be crystal clear by now, "those individuals" that worked on the "past files of the CIA" "at the time" were not necessarily the most even handed and/or disinterested arbiters of the truth. The CIA has a big bone in this fight, and it rests completely in implicating Pelosi, Harman and other members of Congress in their bad acts.

Is This Healthcare Reform Or Just Assistance To Health Corps?

I have a busy morning here, but want to draw attention to an article this morning in the New York Times by Robert Pear on the ongoing discussions of healthcare reform for the United States:

Since last fall, many of the leading figures in the nation’s long-running health care debate have been meeting secretly in a Senate hearing room. Now, with the blessing of the Senate’s leading proponent of universal health insurance, Edward M. Kennedy, they appear to be inching toward a consensus that could reshape the debate.

Many of the parties, from big insurance companies to lobbyists for consumers, doctors, hospitals and pharmaceutical companies, are embracing the idea that comprehensive health care legislation should include a requirement that every American carry insurance.

“There seems to be a sense of the room that some form of tax penalty is an effective means to enforce such an obligation, though only on those for whom affordable coverage is available,” said the memorandum, prepared by David C. Bowen, a neurobiologist who is director of the health staff at the Senate Committee on Health, Education, Labor and Pensions.

The proposal for an individual mandate was one of the few policy disagreements between Mr. Obama and Hillary Rodham Clinton in their fight for the Democratic presidential nomination. She wanted to require everyone to have and maintain insurance. He said he wanted to “ensure affordable coverage for all,” but would initially apply the mandate only to children.

The 20 people who regularly attend the meetings on Capitol Hill include lobbyists for AARP, Aetna, the A.F.L.-C.I.O., the American Cancer Society, the American Medical Association, America’s Health Insurance Plans, the Business Roundtable, Easter Seals, the National Federation of Independent Business, the Pharmaceutical Research and Manufacturers of America, and the United States Chamber of Commerce.

"Many of the parties, from big insurance companies to lobbyists for consumers, doctors, hospitals and pharmaceutical companies, are embracing the idea that comprehensive health care legislation should include a requirement that every American carry insurance." Yeah, no one could have anticipated that I guess. It suggests that those allowed in these discussions are overwhelmingly tied to the current system; few if any represent alternative approaches. So what is Kennedy’s staff doing? And why are people sworn to secrecy? Surely this deserves more light. With regards to "mandate," the mandate they’re talking about is everyone required to purchase insurance. That does little to control total costs, which is the macro issue that drives the long-run insolvency claims about Medicare/Medicaid and the fact that US costs are higher than elsewhere.

If everyone must have PRIVATE insurance, that’s full employment and industry expansion beyond that for the insurance industry. OTOH, if we move to universal care and single-payer, that cuts the throat of the private health insurance industry. I know which seems more palatable to me. I’ll be honest, I had to struggle to find anything positive to say at all about the things laid out in Pear’s article. There is maybe some help in this for the truly poor. Pretty clear though that for the rest of the country, they are going to keep getting raped as usual on healthcare; perhaps even more so. This doesn’t do squat for anybody in my family, nor anybody I know. I understand that is not the overriding criteria of judgment, but it does matter to me. But we are going broke paying for medical insurance because we all have to buy individual policies that don’t provide that great of coverage and cost a fortune.

We only need the mandate because we refuse to consider true national health insurance. Obama was focussed on bringing costs down during the campaign–the best way to get costs down, despite his protestations, is to get the ones who use the service least to pay into the pot.

If the gov’t was going to offer a program that undercut the private plans (which it easily could because of efficiency), it would theoretically drive private costs down or drive private insurers out of business. . . which would mostly be fine with me. However, with a medicare-for-all model as a competitor, we could make that mandate seem much less burdensome to individuals (and less expensive to the federal gov’t). . . and those that wanted to keep private insurance or demand supplemental plans from the market could do that. . . which sounds like a much freer market solution than the one we have, or the patchwork I expect to get.

As I have said for a long time now, the proper way to craft and pitch a doable healthcare reform is to make it "Medicare For Everyone!"

[The thoughts expressed in this post, aside from the Pear NYT quote, are an amalgamation of those from a discussion I had online with a few extremely bright good friends]

Steele and Boehner Go Gangsta

Well, you just knew that the GOP wouldn’t take the bonecrushing loss in last November’s elections to Rico Suave Obama and the too cool for school Dems lightly. They were, like an octogenarian on Viagra, going to get hip. Or a hip replacement. Whatever.

They started by electing the rootin tootin slick dick midnight mustache Michael Steele as RNC Chairman. When coupled with Boner John Boehner, their ultra- tanned sensitive Minority Leader, this is a clear cut recipe for the GOP surgarific return to power. Let’s check in on their street cred. From today’s CNN Political Ticker:

Republican National Committee Chairman Michael Steele says his party is going to launch an "off the hook" public relations campaign that will update the GOP’s image by translating it to "urban-suburban hip-hop settings."

He added, jokingly, that “we need to uptick our image with everyone, including one-armed midgets.”

Steele described the new multi-platform PR offensive as “avant-garde, technically. It will come to [the] table with things that will surprise everyone — off the hook.” Asked whether that meant cutting-edge tactics, Steele demurred. “I don’t do ‘cutting-edge,’” he said. “That’s what Democrats are doing. We’re going beyond cutting-edge.”

Booyah. Get down James Brown and Fitty Cent take a backseat. Now let’s look in on the Steeley One’s partner in vice, Boner Boehner. Oooh, here he is jawing up the GOP stimulus position (yeah, okay, bad imagery) and his homeboy. What a twofer:

The stimulus has passed. In addition to voting against it, Republicans are all over the airwaves trashing it.

The leader of their pack is John Boehner, the man with a tan. According to him, the stimulus will not create jobs. According to Michael Steele, the new RNC Chair, if you work and earn money, you do not necessarily have a job. According to all Republicans who voted no, this bill, with terrible ideas such as helping states pay for Medicare, assisting our elders and our children, is a disaster for our country.

That’s right; the Tan With a Plan. Wow. What a dynamic duo. Crockett and Tubbs roll in DC. Oh yeah, and Sistah McKracka is going to take the toobz by storm. What could possibly go wrong?

BREAKING: Burris Fesses Up

rolandburris-1thumbnail.thumbnail.jpgChicago tenor Roland Burris is singing a new tune:

U.S. Sen. Roland Burris has acknowledged he sought to raise campaign funds for then-Gov. Rod Blagojevich at the request of the governor’s brother at the same time he was making a pitch to be appointed to the Senate seat previously held by President Barack Obama.

Burris’ latest comments in Peoria Monday night were the first time he has publicly said he was actively trying to raise money for Blagojevich. Previously Burris has left the impression that he always balked at the issue of raising money for the governor because of his interest in the Senate appointment.

In comments to reporters after appearing at a Democratic dinner, the senator several times contradicted his latest under-oath affidavit that he quietly filed with the Illinois House impeachment panel earlier this month. That affidavit was itself an attempt to clean up his live, sworn testimony to the panel Jan. 8, when he omitted his contacts with several Blagojevich insiders.

Now this is something that Marcy (see: here and here) predicted, as did many of you. So, it is not exactly a shocking Captain Renault moment. That said, it is still extremely damning and is going to lead to a justified uproar. Already Illinois Attorney General Lisa Madigan is calling for a deeper investigation, although she has held short of claiming perjury by Burris.

It is just the bundling efforts that Marcy predicted may be in play that appear to be in issue:

Burris said Robert Blagojevich told him, “‘We need to raise some funds. We hope that you could probably get some of your friends together.’ I said, ‘What type of money we looking for?’ He says, ‘Can you raise us 10-or-15 thousand dollars?’

Here are the new details Burris has copped to as of last night:

“So some time shortly after Obama was elected, the brother called,” Burris said last night of Robert Blagojevich. “And now in the meantime, I’d talked to some people about trying to see if we could put a fund-raiser on. Nobody was—they said we aren’t giving money to the governor. And I said, ‘OK, you know, I can’t tell them what to do with their money.’”

“So when the (governor’s) brother called me back, I said, ‘Well, look Rob…I can’t raise any money from my friends. I said, maybe my partner and I, you can talk this over and see, could we go to some other people that we might be able to talk to that would help us out if we give–because we give a fundraiser in the law office, nobody going to show up. We’ll probably have a thousand dollars for you or something to that effect.’

Burris said prior to his final conversation with Robert Blagojevich in November he came to the conclusion that because of his interest in the Senate seat, he couldn’t raise money for the governor.

“I said, ‘No. 1, I can’t raise any money for you and I can’t give you any money because I don’t want to have a conflict,” Burris said he told Rob Blagojevich.

The obvious point there seems to be that, at least so far, there is no evidence against Burris nor admission by him of him actually raising cash as opposed to attempting to do so. He will use this as a basis for arguing that there was no quid pro quo. Quite frankly, that is a fair argument – so far. The other thing is that, in relation to his testimony in front of the Illinois Legislature in January, Burris will say that when he testified "I talked to some friends" he was admitting to talking to the people Jim Durkin was inquiring about and just forgot to specify further, and it was an oversight. Do I believe that? No. Could I sandpaper him up and put him on the witness stand in a perjury trial and argue it up with a closing statement to sell it to a jury? You bet.

There is one other factor that muddies the waters, Mike Ettinger, Robert Blagojevich’s lawyer (and in what has to be a conflict at this point, Rod Blagojevich’s attorney of record in the criminal case), is now spreading a slightly different version:

Ettinger said Robert Blagojevich did not know about Burris’ interest in the Senate seat until the lasts of the three calls, which occurred in November after the election.

Ettinger said Robert did reach out to Burris in October, but to ask him to host a fundraiser, not to make a personal contribution. No specific amount was discussed, Ettinger said.

Ettinger has said he understands Burris contends he had told five people about his interest in the seat during the fall time frame.

"That may be, but my client wasn’t one of them," Ettinger said.

The lawyer said his client spoke with Burris in November while on the phone at the Blagojevich campaign office, which leads him to believe that call was recorded by federal agents, who had tapped the campaign headquarters’ phones.

During that conversation, Robert Blagojevich learned of Burris’ interest in the seat for the first time, and no fundraising effort with Burris went forward, Ettinger said.

The real problem, per the age old maxim, is that it isn’t the underlying act in politics, it is the lying and coverup. Burris may never get convicted of perjury, at least if the facts don’t materially change (Ha!), but he has already bought the farm on credibility. It will be interesting to see if Harry Reid, Dick Durbin and the Senate try to expel him. One thing is for certain, there are already behind the scenes chats with Burris trying to get him to resign. He has been awfully cocky and persistent so far, but we shall see.

UPDATE: Burris says he is game for any investigation:

U.S. Sen. Roland Burris said today he is open to a Senate ethics investigation into how he got the Senate seat from ex-Gov. Rod Blagojevich and that he has reached out to a Sangamon County prosecutor who is reviewing Burris’ sworn testimony before Illinois lawmakers.

Burris made a brief statement to reporters in Peoria today, saying an aide had reached out to Sangamon County State’s Atty. John Schmidt, who is reviewing testimony Burris gave last month to House lawmakers in Springfield about his contacts with allies of the ousted governor.

"I have made an effort to be as transparent as I can," Burris said. "I have nothing to hide."

Burris said, "I welcome the opportunity to go before any and all investigative bodies…to answer questions they have."

"There was never any inappropriate (contact) between me and anyone else," Burris said. "And I will answer any and all questions to get that point across and keep my faith with the people of Illinois."

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