Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than simply that. The constitutionality of invidious discrimination based on sexual orientation should be argued with the government taking the lead on saying it is NOT constitutional, has no place in our society or government and that the court should so declare any such conduct invidiously discriminatory against a protected class under equal protection, due process and first amendment grounds. The Obama Administration and DOJ should should have the courage and principle to come out and say just that.

And in the meantime, Obama should help the effort along, and set a positive example, by issuing an executive order under his crystal clear stop loss authority pursuant to 10 USC 12305 stopping all discharges from the United States Military under the pernicious DADT policy. The President has that power and should have the courage to use it.

Obama is doing none of the above and, instead, is paying cheap political lip service only by hiding and trying to frame everything in terms of Congressional repeal. When asked about the court rulings by Phillips in the LCR DADT case, by Tauro in the DOMA case, or by Walker in Perry, the response is always in terms of legislation repealing things in place. legislation affirmatively protecting something in the future, studies to see what is appropriate or some other mealy mouthed baloney.

On the other hand, not a lick of the above described baloney matters if the discrimination at issue is flat out unconstitutional. If it is unconstitutional, and DADT absolutely is, then studies are irrelevant. What generals and servicemembers wives think and respond to in answers to ginned up surveys is irrelevant. Legislation by Congress is irrelevant. Public opinion, for that matter, is irrelevant. None of that matters because it is a fundamental right for such citizens to be treated equally under the United States Constitution and not be discriminated against. End of story. Seriously, it either is or it is not.

However, the filing by the Obama DOJ speaks for itself as to where we stand today. (And here is a just posted article by Gerstein on the stay attempt in the 9th). As an attorney, I am inclined to agree with their position that the injunctive order by Judge Phillips is of questionable validity in its extension worldwide against the US military. As the government’s brief argues, the standing granted in the Log Cabin Republican case was limited and restricted; it is hard to see how it serves as a proper foundation for the extraordinarily broad injunction she issued.

That said, Judge Phillips’ decision on the root unconstitutionality of DADT is spot on valid and correct and, as cited above, there is nothing to stop the government from voluntarily complying with the spirit of that finding or, indeed, President Obama from mandating evisceration of DADT pursuant to his stop loss authority under 10 USC 12305. What is needed is a profile in courage instead of another example of rank political triangulation.

A lot of hope was placed on the back of Elizabeth Warren and the financial reform act passed by Congress at the behest of the Administration formally known as the Dodd-Frank Wall Street Reform and Consumer Protection Act. Concurrent with belittling the liberal Democratic activist base as ungrateful whiners, the Administration and Democratic leadership has touted Liz Warren and Dodd-Frank as prime examples of accomplishments that should thrill and satisfy the base. But are those “accomplishments” really all that and should they mollify Democrats, at least on financial reform issues? The initial returns indicate no.

First, the ability of Dodd-Frank to do the job intended as to rapacious financial institutions is highly debatable at best, and that is being generous. It is already established the bill did not clamp down sufficiently on the reckless casino style trading in derivatives and synthetic financial products, and may even have opened a new portal for abuse by the Wall Street Masters of the Universe high frequency traders.

Gretchen Morgenson in today’s New York Times lays out beautifully the bigger picture on the lack of reform in the “reform”:

THE government is pulling a sheet over TARP, the Troubled Asset Relief Program created during the panic of 2008 to bail out the nation’s financial institutions. With the program’s expiration on Sunday, we can expect to hear lots of claims from the folks at the Treasury that it was a great success.

Such assertions would be no surprise from a political class justifiably concerned about possible taxpayer unhappiness, the continuing economic turmoil and the midterm elections. But if we have learned anything during this crisis, it is that the proclamations emanating from the Washington spin machine must be taken with an extra-hefty grain of salt.

Consider the claims made last summer that the Dodd-Frank financial reform act reduces the threats that large, interconnected banks pose to taxpayers and the economy when the banks are deemed too big to fail. Indeed, as regulators hammer out the rules governing derivatives transactions, it’s evident that the law has created a new set of institutions that will almost certainly be deemed too important to fail if they ever get into trouble. And that means there won’t really be an effective way to keep those firms from taking big, profitable, short-term risks that are dumped on the taxpayers when the bets fail.

Our roster of bailout candidates includes the clearinghouses, created under Dodd-Frank, that are meant to increase the oversight of derivatives trading. Because most derivatives transactions are expected to go through these clearinghouses, they will be “systemically important” under the law. As such, Dodd-Frank specifically provides that “in unusual or exigent circumstances,” the Federal Reserve may provide such entities with a financial backstop, including borrowing privileges.

Remember this: Financial backstop is just another term for a taxpayer bailout. And the major banks and brokerage firms are the members of the clearinghouses, so a backstop would essentially be for them.

According to the Bank for International Settlements, the entire derivatives market had a gross credit exposure of $3.5 trillion at the end of 2009. Obviously, even a small fraction of that amount could represent a sizable call on the taxpayers if a clearinghouse hit the skids.

So much for eradicating too-big-to-fail.

So much for ending “Too Big To Fail” indeed. Like upwardly spiraling health care costs from “healthcare reform”, it appears all that has been done is to institutionalize the very problems in need of eradication.

Well, how about Elizabeth Warren, surely her placement in the Obama Administration is a giant positive the Democratic activist base can hang their hat on and take to the bank, right? In a word, no. Now, before we go further, I want to make perfectly clear that I admire and respect Warren greatly and probably as much or more than anybody in the public sector today. For that reason, writing the following pains me greatly, but I believe the facts and circumstances warrant honesty about the situation surrounding Liz Warren.

Here is what I said back on September 17th:

I spent a good chunk of the night a couple past reading the bill and the enabling provisions for formation of the CFPB. Done properly, the contemplation is for sucking in huge swaths of power, almost like a smaller version of the reorganization that formed the DHS, but is a good way. I think Warren will be interested in consolidating this power in an agency that might actually help people; I do not think any of the others involved, whether Geithner, Summers, Obama, Banksters, MOTUs and the agencies the power would be carved out from, will be interested in this at to any real degree at all. As is, Geithner and his Treasury team will have the last word on this, not Warren.

But the thing is, the power Geithner has is vested in the head of CFPB once confirmed or installed by recess appointment, which could have been Warren. That is a HUGE difference that Obama has intentionally and actively worked his ass off to prevent occurring. Today is the first big date, the date Geithner specifies the operative date for transfer of powers from other areas and agencies, which is the date the whole formation will then be calendared off of. It is a huge date. That is one of the main reasons why they strung Warren out till today, so she had no input on that. So Obama Could have named Warren immediately and pushed hard for fast confirmation or recess appointed her so that she had the power to do this right. Instead, he intentionally strung her out and insured that Geithner had all the real authority to not make the CFPB what it ought to be and has, further, insured that Warren never is confirmable in the future (the logistics after the mid-terms will make it impossible). Heckuva job.

For any so inclined, go read the actual CFPB enabling provisions in the the Dodd-Frank Bill. I think you will begin to understand what I am describing as to the awesome power that could be in CFPB if it was taken and done right. That power, and the ability to NOT exercise it, however, because of the Obama White House path, stays vested solely in Geithner/Treasury hands, and subject to the incredibly relentless influence of MOTU Banksters until a CFPB head is confirmed or recess appointed. And that, folks, is exactly why the Obama Administration refused to nominate or appoint Elizabeth Warren to be the actual head of CFPB. There was never a chance.

But there is a lot of good Warren can accomplish in her weird hybrid post Obama crafted for her, right? Not really, especially in relation to the awesome power she could have wielded, and should be wielding as head of CFPB. Yves Smith at Naked Capitalism sums it up very well:

It is now official that Warren is at best a placeholder; she cannot have much impact. She can’t make much in the way of policy or personnel choices; that would encroach on the authority of an incoming director. And even her ability to influence the choice of a nominee is questionable. Her taking the advisory role now assures that the nomination of the permanent director will come after the midterm Congressional elections. Given the virtual certainty of Democratic losses, the odds are high that Team Obama will settle on a “conservative” meaning “won’t ruffle the banking industry” choice, and argue its hands were tied.

So the Obama camp has played this extremely well. They get to avail themselves of the Warren brand, give her a Potemkin role, and use it to push the timetable for nomination of the permanent director out, which give them cover for installing a more compliant choice.

That is exactly right. And, as I stated above, what the Warren co-option by Obama and Geithner has done is not just to score political points from gullible Democrats desperate for a hint of intelligent financial policy from a moribund Administration, but more importantly to provide cover for the hollowing out of what could have been, and should have been, awesome power of a CFPB in competent and motivated hands of somebody actually interested in real consumer and citizen protection. Someone like Elizabeth Warren. It is a craven bait and switch and you, the consumer and citizen, are on the losing end.

Want more evidence? From Sewell Chan in Thursday’s New York Times:

The Obama administration is starting to set up the new Consumer Financial Protection Bureau, but relief for consumers befuddled by the complex disclosures that accompany credit cards, auto loans and mortgages will not come about right away.

Under questioning from senators on Thursday, the deputy Treasury secretary, Neal S. Wolin, acknowledged that regulators would not have substantive power to write rules governing a vast array of consumer loans until a permanent director of the bureau is in place and until July 21, 2011, when responsibilities from seven other federal agencies are transferred to the new bureau.

…..

At the hearing, Senator Richard C. Shelby of Alabama, the top Republican on the Banking Committee, said that the Treasury Department had emphasized the need to move quickly on writing new rules governing consumer loans, and questioned whether the department could do that “without a confirmed director.”

Mr. Wolin replied that “there is limited rule-writing authority, but it is constrained until such time as there is a confirmed director.

….

Finally, Mr. Wolin acknowledged to the senators that “the authority to actually issue a rule that would bind private parties, for example, in the mortgage area is a tough one until such time as there is a confirmed director.”

Therein lies the truth the Obama Administration has carefully obscured. They not only denied Elizabeth Warren the post she deserved and the power the country needed in her hands, they co-opted her as cover for frustrating the very purpose of the CFPA. There is no real power for the CFPA, and the true “rule writing” cannot occur, until there is a formal head and because of the bait and switch, Obama and Geithner have indefinitely strung out the time when there will be such a formal head of CFPB.

Elizabeth Warren is completely marginalized and, whatever little authority she does currently have disappears the second a real head of CFPA is confirmed. And do not kid yourself, while confirmation of Warren to head the CFPA would have been possible, even granted it would have been a very tough fight, in the current Congress, it will be impossible with the reduced Senate majority in the coming Congress. Thanks to the conduct of the Administration, there is now no chance whatsoever of Warren ever being confirmed and instead a conservative hack vetted and to the liking of conservative Republicans and Wall Street banksters will be the choice. Mission accomplished.

The ever more arrogant and belligerent to the progressive base Obama White House can call it “whiny” all they want, the truth is they are selling the base, and the rest of the country and mostly gullible press, a bill of goods. Admitting the truth isn’t being whiny, it’s being honest.

This is just pathetic:

Vice President Joe Biden travels to Boston Wednesday, where he’s scheduled to team up with Sen. Blanche Lincoln of Arkansas.

A Democratic source tells CNN that the event is a fundraiser for the two-term Democratic senator, who faces a very difficult re-election bid this year.

Blanche Lincoln just joined Republicans to scuttle the defense bill, and with it the DREAM Act and DADT repeal–both purportedly Administration priorities (to say nothing about the Defense bill itself). Moreover, no amount of money is going to get Blanche out of her electoral hole this year. And her patrons, the Waltons, have plenty to give her all by themselves, without picking the pockets of Boston liberals.

So why is Joe Biden wasting some of his precious time and political capital helping a woman who, yesterday, broke with the party on the defense bill? Is this Administration so dysfunctional it can’t even demand discipline from those it’s financially supporting?

Yes, that is Sparky the Sun Devil and the small turd next to him is John McCain (no, it is not a photoshop; is a real picture McCain himself put out on Twitter). As you may have heard, the Arizona primary was last Tuesday and McCain squeaked by the “serious challenge” of gasbag extraordinaire J.D. Hayworth. McCain beat Hayworth by 25 points. But for months, going back even well before Hayworth finally was forced to quit campaigning on his radio show and admit he was actually running, the national media clucking heads were yammering relentlessly about how McCain was “vulnerable” and “in the fight of his political life”. It was, as just about everything with McCain is, a complete gin job and fabrication by the national media.

Here is what I said in an email discussion with a number of colleagues back on February 24 after one of them started talking about McCain being in trouble:

I am telling you, I just do not, at least yet, see any giant tidal wave here for Hayworth. … It may change, but so far in Arizona, the Hayworth bandwagon is far overrated by the national chattering classes.

….

Again, the problem is there is a very established Republican party and attendant power and money machine here and they do not like JD Hayworth for shit and never did; they did not give a rat’s ass about him losing to Harry Mitchell, in fact if they had, he would not have lost. Quite frankly, McCain is not their favorite either in some regards; but he sure is compared to Hayworth historically. Plus McCain has Grant Woods behind the scenes again, and he is very good and pretty ruthless. Hayworth’s sound bites make for dandy fodder for FoxNews, MSNBC and, to a lesser extent CNN, but they do not mean diddly shit here. This is not a national election, it is an Arizona Republican primary.

I tried to correct the record with any number of places and people when I saw this meme, right up to the election; mostly to little avail. I am a native here and have been around a long time, there was just never a chance in hell that Hayworth could even get close to McCain; but you just could not stop the national political horserace chattering chowderheads like Chuck Todd, Chris Matthews, Chris Cillizza, the Politico boys etc. from perpetrating this pile of dung.

They were full of it as the vote total demonstrated. Now they have blithely moved on to compensating for their ignorance and/or incompetence by clucking about “yes, yes, McCain won big, but he had to sell out and be someone he wasn’t to do it”. See for instance USA Today, NPR, Reuters, and Dan Balz of the Washington Post.

It is all pure unadulterated rubbish. A con. McCain has always been a completely self serving grifter con who has never been dedicated to any principle or cause other than John McCain. McCain walked out on his first wife and family after returning from Vietnam, after she had waited for him the entire time and while she was crippled and laid up bedridden from a tragic car accident. Left her while they were still married and brought his flim flam carpetbag to Arizona because it provided what he thought was his best shot of anywhere in the country to get a seat in Congress and because there was a very cute and very rich beer heiress here whose family could provide him with the juice and credibility to get elected.

That is the kind of man McCain is and what he stands for. Always has been, always will be. John McCain is a supremely narcissistic self serving belligerent lout that cares about one thing, and one thing only, and that is John McCain. So, when senile political nitwits like Matlock David Broder blather baloney like this:

But now, as the 73-year-old senator prepares for what may well be his final term in a congressional career that began in 1982, the time has come for McCain to look to his legacy — and conditions are right.

In a Congress in which Democrats have pitiful approval ratings and Republicans even worse, McCain is one of the few names that does not draw instant contempt from the voters. The reputation he established for independence — for being his own man, no matter what the pressures — has survived the vagaries of an exceptionally long career.

choke back the appropriate gag reflex to puke and remember just who and what John McCain really is, the belligerent narcissistic turd of a Devil. McCain didn’t change to win this election, doing and saying whatever benefits John McCain at the moment has always been his calling card.

In other news and notes from the Arizona primary last Tuesday, it will be Jan Brewer versus current Attorney General and former Phoenix Mayor Terry Goddard in the general election for governor. It is kind of amusing watching the same chattering media class described above talk about Jan Brewer like she is some political force to be reckoned with. Brewer has been around for decades, mostly as a harmless but batty state legislator. Locals called her “Kooky Jan” as far back as the 1980s because she was, well, kind of kooky.

Brewer’s newfound notoriety and prominence is accidental, not the mark of political shrewdness. She was basically the puppet template that a local right wing political strongman operative by the name of Chuck Coughlin ran for Secretary of State and fell into the governorship when Janet Napolitano was named DHS Secretary. Brewer also stumbled into the SB 1070 Immigration law issue and she and Coughlin were smart enough to know it was her ticket to fend off Joe Arpaio’s thoughts of primarying her and to get her name out as a power player who was capable of actually being reelected (which was not particularly the case before). Brewer is actually personally very nice and not particularly mean spirited, but she saw her ticket to staying in office and ran with it.

Terry Goddard is a good guy and a decent politician, but has little charisma and has been hanging around for so long that he just kind of has the patina of stale. Unless something changes, Kooky Jan is going to be comfortably reelected, which is more than a little mind blowing.

Another very important race is for Attorney General. The uber right wing political climber, and Joe Arpaio acolyte, Andrew Thomas thankfully was defeated in the primary. Unfortunately, the guy who squeaked out the win over Thomas by a few hundred votes, Tom Horne, is not all that much better. And Horne will have a solid advantage over the Democratic nominee Felicia Rotellini. This is a critical post because the Arizona AG decides how to handle the batshit crazy legislation that comes out of the Arizona state legislature. If you have any pull in Arizona, or friends there, give Rotellini some help.

Last, but not least, there is the matter of young Ben Quayle. Also known as Brock Landers. Quayle is an aggressive and incredibly duplicitous punk who needs to be stopped. Quayle at first denied he was party boy Brock Landers, then admitted he had lied. Word on the street here is that a LOT more about Quayle/Landers’ Caligula past will be forthcoming; it already is in multiple forums.

Doug Kahn and Howie Klein have been pounding on the absolutely horrid Blue Dog Gabby Giffords over at Down With Tyranny and supporting progressive Raul Grijalva from the shameless attacks by Giffords and the DNCC.

So that is an update on political life in wingnut hell, otherwise known as Arizona.

Barack Obama was never a hard liberal nor progressive, whatever the supposed difference between the two really is. Those blinded by hope and change who thought otherwise were imprinting their own desires and beliefs on what was a relatively blank slate, which was probably easy enough to do in the despair resultant from the eight years of George Bush. By the same token, however, Mr. Obama cultivated and encouraged such beliefs; this he worked hard at, and it was critical to him being elected president.

Now if you listened to, and read Obama, and paid attention, you knew he was a centrist who worked by increment, compromise and seeking consensus as opposed to a liberal beacon that would take the country in a new and markedly different direction. Again, that said, the liberals and progressives who served as the ground force, heart and soul of Obama’s candidacy and election had every right to believe he would would at least include them at his table and utilize their talents in his Administration and appointments. There was an implicit deal made in this regard, and Obama purchased on it to his wild success. Now he has defaulted.

I first wrote significantly on the betrayal of the Obama White House toward liberal nominees in relation to the nomination of Dawn Johnsen to the critical post of head of the Department of Justice’s Office of Legal Counsel. The scorn for, and abandonment of, the Johnsen nomination still stands out because of the fact it is clearly established that there were 60 votes cloture on a Senate floor vote for Johnsen’s nomination. It wasn’t that Johnsen could not be confirmed, she absolutely could have been and would have been; it was that Obama did not want her and would not call for a vote.

Johnsen was not only the best person for a critical job, she was a symbol to a critical part of Obama’s and the Democratic constituency. It is far more than Dawn Johnsen however it is a pattern of abuse and scorn the Obama White House relentlessly exhibits to a major portion of the base. Currently the focus of progressives is on the potential nomination of Elizabeth Warren as head of the newly enacted Consumer Financial Protection Bureau. Despite some public platitudes, it is quite clear the Obama Administration does not want a competent crusader for citizens like Warren and, apparently, is working through the cut out of Chris Dodd to see Warren doesn’t get the nod.

Maybe the pressure will get to the Obama White House and Warren will get the post she deserves and would be perfect for; but don’t count on it because Obama, Geithner, Summers, Rahm and the boys on the Obama bus just do not want her. And they didn’t want Christine Romer either, so they let the misogynistic, consistently wrong about everything he touches, Larry Summers push her out. It is becoming a broken record with this White House.

Most distressing to me, because I practice law in the 9th Circuit, is the complete abandonment of two critical liberal judicial nominees, Goodwin Liu and Edward Chen; you may not be aware of because their nominations were tanked in the quiet of the night before those oh so hard working and diligent souls in the United States Senate jetted out of town for a 37 day vacation. Because Senate Rule XXXI specifies that all nominations not voted on and not held over by unanimous consent are extinguished and returned to the White House, the Liu and Chen nominations are toast.

Some of the still starry eyed Obama true believers who care about Liu and Chen (and both are incredibly excellent and worthy nominees) probably still think Obama will renominate them (and there is mention of that by, of course, an anonymous “White House official”). But even if he did, why in the world would anybody believe it to be anything other than a ruse to get their support leading up to the fall election? Obama renominated Dawn Johnsen and then hung her out to dry twisting in the wind until she finally ended the charade. It was a charade to sucker progressives, and there is no reason to believe he will not do it again. There is a track record with this White House, and it is not a good one; in fact, it is downright pathetic.

If you do not know about Goodwin Liu, you should. Liu is quite arguably the brightest and most accomplished young legal liberal star in the universe. He is the future of any liberal hope on the Supreme Court; like Antonin Scalia or John Roberts on the right, Liu is the future legal heavyweight for the liberal future. At only 39 years of age, Liu’s resume and record of accomplishment, service and involvement in the law makes Elena Kagan look like a malnourished piker. He is worth fighting for tooth and nail (and so is Ed Chen for that matter). Except Barack Obama did not lift a finger; didn’t ever expend any of his precious political capital in furtherance of the nomination and didn’t even utter a peep of protest as Harry Reid and the Senate let him die in the night as they were fleeing town. But that is the hallmark of the Obama Presidency in relation to liberals and/or progressives; they just don’t give a damn and won’t lift a finger (but they will expect the votes whenever elections come around).

The Obama White House also put up no fight for Peter Diamond, a worthy and critical nominee to the Federal Reserve Board. It is a pattern and practice with the Obama White House. If you are an only marginally qualified centrist Obama toady like Elena Kagan, they will fight like dogs for you; but if you are a strong progressive voice you are toast.

Maybe progressives ought to be considering someone like Elizabeth Warren for a much higher office than head of CFPB; or they can continue to be treated as “f**cking ret*rds” by the current denizens of the White House.

As several folks have noticed in comments, the results are in from the Nick and Nora Dannehy DOJ investigation into the US Attorney firings by the Bush/Cheney Administration. And, shockingly, the Obama/Holder Department of Justice just cannot find any conduct, not one single instance, worthy of criminal prosecution.

From the official six page letter from DOJ Main’s AAG, Ronald Welch, making the belated and pitiful report to Judiciary Chairman John Conyers,

This supplements our earlier response to your letter of October 2, 2008, which requested information about the appointment of Assistant United States Attorney Nora R. Dannehy of the District of Connecticut to detennine if criminal charges are warranted based on certain findings in the public report of the Office of the Inspector General (OIG) and the Office of Professional Responsibility (OPR) (collectively OIG/OPR) entitled “An Investigation into the Removal of Nine U.S. Attorneys in 2006” (Report). We are sending identical responses to the other Members who joined in your letter to us. As more fully explained below, Ms. Dannehy has detennined that no criminal charges are warranted with respect to this matter.

…..

In closing, it is important to emphasize that Attorney General Holder is committed to ensuring that partisan political considerations play no role in the law enforcement decisions of the Department. In this instance, Ms. Dannehy, a long time career prosecutor, was asked only to assess the possible criminality of the actions described in the OIG/OPR report, to conduct such additional investigation as necessary to make that assessment, and to determine whether anyone made prosecutable false statements to Congress or OIG/OPR. The Attorney General appreciates the work of Ms. Dannehy and her investigative team and has accepted her recommendation that criminal prosecution is not warranted.

The Attorney General remains deeply dismayed by the OIG/OPR findings related to politicization of the Department’s actions, and has taken steps to ensure those mistakes will not be repeated. The Attorney General also appreciates the work of the Inspector General and the Office of Professional Responsibility on this matter.

We hope that this information is helpful. Please do not hesitate to contact this office if we can provide additional assistance regarding this or any other matter.

The whole letter is here and speaks for itself if you care to read it.

This is entirely what anybody with a lick of sense should have expected from the forward looking modus operandi of the Obama Administration. The one note I would make is that Dannehy’s “investigation” was never a full fledged inquiry into the entire matter; the focus was set at, and remained, on David Iglesias’ complaint, which was not phrased all that compellingly by Iglesias to start with, and was further muddled by the antics of Scott Bloch. Little but lip service was given to the remainder of the sordid picture of Purgegate. You might remember Scott Bloch, the “professional” Iglesias was so sure would do the right thing and get to the bottom of the abuse engendered upon Iglesias.

In other news, the Obama/Holder DOJ recently announced they have no problem with Scott Bloch getting off with probation on his criminal plea of guilt.

The Obama White House loves tidy little packages, and they have clearly wrapped one up here. Any more questions about how the big John Durham “preliminary review” will come out?

Coming late in the day (h/t Fatster) is the somewhat weak and ineffectual response from Judiciary Chairman John Conyers. Acceptance and resignation continue to rule the day. Every day.

President Obama has announced yet another recess appointment; the courtesy and propriety that he would not give to Dawn Johnsen:

President Barack Obama, frustrated by Republican obstruction of key administration staffing appointments, will use his power to appoint his pick to run Medicare and Medicaid while the U.S. Congress is in recess, the White House said on Tuesday.

Obama will make the appointment on Wednesday of Dr. Donald Berwick, a healthcare expert he nominated in April to run the vast federal medical programs for poor and elderly Americans, according to White House Communications Director Dan Pfeiffer.

Obama has found the inner spine to recess appoint NLRB member Craig Becker along with 14 other people to a variety of positions from the DOJ to Treasury Department, has stated he will do so for militarized spook James Clapper (who neither side seems to like), and now Donald Berwick.

Obama seems to consider Berwick critical:

Berwick’s appointment as administrator of the Centers for Medicare and Medicaid Services (CMS) place him at the heart of Obama’s historic healthcare reform, and the role was too vital to leave unfilled, Pfeiffer said.

“CMS has been without a permanent administrator since 2006, and even many Republicans have called on the Administration to move to quickly to name a permanent head,” he said.

Dan Pfeiffer and the White House are full of dung. If “many Republicans” were clamoring for his nominee, even a couple in the Senate, he would not need to recess appoint. What is truly stunning though is that Obama considers this position critical, but not the head of the Office of Legal Counsel, the body that is supposed to be the legal conscience of an administration. Equally galling is the fact the White House trots out the excuse that “CMS has been without a permanent administrator since 2006”. Four years is too long for CMS, but six years is no problem for the critical Office of Legal Counsel? Really?

As I have repeatedly explained and demonstrated with facts and evidence, Barack Obama had 60 votes for confirmation of Dawn Johnsen to head OLC for the entire second half of last year and sat on her nomination, refusing to even call a vote. The fact that Obama flat out refused to even consider a recess nomination for Dawn Johnsen to an office dying for real leadership, and that he will use the recess appointment power anywhere and everywhere else, ought to be proof to any doubters that the sole reason Dawn Johnsen is not leading the OLC is because Barack Obama did not want her there.

For a President intent on granting retroactive FISA immunity to criminally complicit telecoms, asserting endless claims of “state secrecy” to cover up crimes of the Bush/Cheney Administration, suppressing torture photos, tapes and evidence, ordering the indefinite detentions without trial or due process and ordering the extra-judicial assassination of remote targets (including American citizens), well I guess a person of Dawn Johnsen’s morals and ethics indeed might not be convenient. Even given that, why did the White House engage in such crass duplicity with the country and hang Dawn Johnsen out to dry for so long? Why won’t anybody ask that question of them and demand a legitimate answer?

Being away to San Francisco to cover the Prop 8 Closing Arguments this week, I am just catching up on a few things. One I would like to point out is the contemptible and disingenuous op-ed Lanny Davis deposited at The Hill:

Two events last week involving elements of the Democratic Party who call themselves the “true progressives” show a danger they represent to the progressive change they say they want to effect. Together they offer President Barack Obama an opportunity for a “Sister Souljah moment” — perhaps to save the Democratic Party majority in both houses of Congress, as well as his progressive agenda in the last two years of his administration.

First was the success of Sen. Blanche Lincoln in June 8’s Arkansas Democratic primary, despite a campaign organized by these self-described progressives, along with certain labor unions.
……
The second event was a conference on that June 8 primary day, held in Washington and organized by the Campaign for America’s Future, a self-described “progressive” organization, which cheered denunciations of Obama for “retreat on Guantánamo [and] no movement on worker rights or comprehensive immigration reform,” according to The Washington Post’s Dana Milbank, and shouted down and nearly prevented liberal House Speaker Nancy Pelosi (D-Calif.) from speaking.
……
President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

The holier than thou arrogance and self entitled belligerence of Davis is simply stunning. As if Obama has not scorned the progressives and netroots enough already. Davis apparently feels he is the one who gets to decide who is, and who is not, a “true Progressive” and those he deems unfit are due the “Sister Souljah” execution hit. Nice. In the process of whining about progressive activism destroying Democratic party unity, he wants to divide, marginalize and destroy a significant sector of the Democratic party. Clearly Davis’ clarity of thought has been so addled by the toxic brine of the inbred Washington Beltway elitism he cannot see he is committing the very sins he complains of. Either that or he is so cravenly duplicitous he does not care. Davis has a history of such duplicity.

Davis similarly accuses the netroots of being “long on innuendo and personal attacks and short on substance”, which is hilarious for a man lobbing unlinked, uncited and unsupported screed in such a deceptive manner. For instance Davis directly intimates that if/when Blanche Lincoln loses in the general election it will because of the netroot and labor supported primary challenge of Bill Halter in Arkansas. This bit of self serving dishonesty of course neglects the fact that if Davis and his fellow centrist corporate shills really cared about retaining the seat in the general election, they should have supported Halter who arguably was a stronger candidate in the general than Lincoln. Not to mention that, in the general, Lincoln will be the only, and unified, Democratic candidate and thus will be judged on her record by the voters of Arkansas. Apparently Mr. Davis does not approve of the democratic concept of voters being able to express their choice in a primary and thinks only the wise sages of the Washington Beltway get to say who the party choice is.

As to his specific arguments in relation to Lincoln, Davis neglects to mention that the majority of Arkansas voters supported the public option, it is just that he and his corporatist doppelganger Blanche Lincoln who did not. Mr. Davis also failed to admit the only version of “health reform” Lincoln would grudgingly vote for was one that gave her constituents expensive health insurance but little in the way of more or usable health care. Par for Davis’ disingenuous course.

The other manufactured poutrage Davis throws down from his grandiose high horse related to the CAF presser where Nancy Pelosi was heckled by a noisy group of protesters on June 8th. Davis dishonestly intimates in his op-ed that the subject hecklers were the progressive netroots and CAF members he so despises protesting over the public option.

But if Davis had possessed any intellectual integrity or journalistic professionalism, he would have researched and realized the hecklers were not the netroots/CAF crowd, but instead were a separate and limited single issue group of nursing home professionals from an unrelated association known as ADAPT who were concerned about the Community Choice Act relating to long term care provisions for the elderly. Instead, Davis relied on an emailed report from a friend who was not at the event, but sent Davis a missive after reading about the conference from an unknown source. Oh, and a terminally shallow Washington Post column by the supposed humorist Dana Milbank. What a paragon of reportage Lanny Davis is.

Davis closes out his fine whine with this sage wisdom:

President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

Well, yeah, I guess. Or Mr. Obama could, alternatively, pull out of his hazy downward spiral and demonstrate he is the leader of the whole party, and entire country, and not just the centrist corporatist hacks like Lanny Davis.

Go “Sister Souljah” yourself Lanny Davis, you plutocratic Beltway corporatist huckster.

[The attached video is from a December 17, 2009 encounter Jane Hamsher had with Lanny Davis on MSNBC]

One week ago, on the morning of June 7, I wrote about questions on the substantive physical integrity of the BP Macondo well casing and bore, and statements by Florida’s Senator Bill Nelson on the same, as well as potential resulting seepage from the sea floor surrounding the well head. To say the least it raised a few eyebrows.

I have again attached the FDL video from the appearance Nelson made on the Andrea Mitchell MSNBC show where he became the first official to materially discuss the game changing issue of sea floor seepage from a structurally compromised well below the surface. Since Nelson first made the statements and raised the questions, I have spoken to his office several times.

Here is a quote given directly to Emptywheel/Firedoglake by Senator Nelson:

Why do scientists and others suspect the well casing is breached beneath the seafloor? Well, for one, in one of my briefings I learned that a lot of mud used in the so-called “top kill” attempt didn’t come back up after it was pumped down there.

Clearly, from Senator Nelson’s quote, he has received multiple briefings in addition to the information in the public domain, and he is hearing other private disturbing reports. Quite frankly, this should be of no shock in light of that which is, and was, already in the public domain. In this post, mindful of the fact there is likely a wealth we in the public do not yet know, I would like to delve into the public evidence Senator Nelson was relying on and why this is an issue that should, and must, remain squarely in the forefront of public and media conscience.

First off, it is clear Senator Nelson’s measured statements to Andrea Mitchell were not an off the cuff or uninformed gaffe by Nelson. Quite the contrary, he and his staff had been probing the issue of the integrity of the well bore long prior to the MSNBC appearance. On June 2, Sen. Nelson directed the following correspondence to BP:

June 2, 2010

Mr. Lamar McKay
Chairman and president, BP America, Inc.
501 Westlake Park Boulevard
Houston, Texas 77079

Dear Mr. McKay:

I understand the priority of your company right now is capping the Deepwater Horizon well. But new information about the accident has come to light in two recently published accounts that raise serious questions I hope you can promptly address.

Specifically, a recent Wall Street Journal account indicates that BP altered the design of the Deepwater Horizon well even up to five or six days before the rig exploded. And one of these design decisions, according to drilling experts cited in the Journal, could have left the well more vulnerable to the blowout that occurred April 20.

Also, a Washington Post report cites sources including a BP official saying that sometime during or after the recent abortive top kill operation, new damage was discovered inside the underground well. Some of the drilling mud that was forced into the well was moving sidewise into rock formations, sources told the newspaper.

If the sourced information is accurate and mud leaked out the side of the well casing, oil and gas likely are leaking beneath the seafloor as well, according to Professor Ian R. MacDonald, an oceanography expert at Florida State University who advised my staff.

Both of the published accounts, then, raise serious questions. Please address these accounts and provide my staff with any and all information and documents regarding the following:

· The discovery of breaks or leaks in the well casing beneath the seafloor;
· Records of any monitoring BP is undertaking of the Deepwater Horizon wellbore for structural integrity;
· Records of any monitoring of the seafloor surrounding the Deepwater Horizon well, including any geological or geophysical information showing changes in the formations within the proximity of the Deepwater Horizon well;
· Records reflecting whether any oil, natural gas, or residual drilling mud might be migrating to the seafloor beyond the boundaries of the casing, including any analysis of how this might impact the drilling of two relief wells or other methods to mitigate the flow of oil;
· All documents related to BP’s casing strategies for wells in the Macondo prospect.

Thank you in advance for your prompt response.

Sincerely,

Bill Nelson

The first of the two articles Nelson relies on in his June 2 correspondence to BP is from the Washington Post on May 31, 2010. After noting that drilling experts were afraid the failed “Top Kill” attempt by BP, which involved shooting drilling mud down through the heavily damaged blow out preventer (BOP) and into the well “might have done further damage to the well”, the Post article stated:

Sources at two companies involved with the well said that BP also discovered new damage inside the well below the seafloor and that, as a result, some of the drilling mud that was successfully forced into the well was going off to the side into rock formations.

“We discovered things that were broken in the sub-surface,” said a BP official who spoke on the condition of anonymity. He said that mud was making it “out to the side, into the formation.” The official said he could not describe what was damaged in the well.

Therein lies the issue at the heart of the issue regarding the lack of well integrity; with the Post citing multiple (if some unnamed) sources confirming the well casing was completely breached to such an extent that, when the Top Kill attempt was made, they lost drilling mud out through the breached casing, well walls and into the surrounding rock formation. Now the other thing I find absolutely fascinating about this Washington Post article in the discussion of Dr. Steven Chu and the Department of Energy (DOE) tucked in toward the end:

“At the end of the day, the government tells BP what to do, and at the end of the day, we will hold BP accountable for all of this,” she said.

She also sought to portray the administration as in charge and engaged. She said an administration “brain trust” led by Energy Secretary Steven Chu urged BP to stop adding pressure to the well through the top-kill maneuver because “things could happen that would make the situation worse.”

But she stopped short on CBS of saying that Chu ordered an end to the top-kill maneuver.

Well, Carol Browner may have “stopped short” of saying that Dr. Chu and the DOE were the ones who ordered the premature termination of the ill fated Top Kill attempt by BP, but it is pretty clear that is exactly what happened.

A decent question is by what mechanism did Chu and DOE come to be so in the middle and calling the shots on the Top Kill operation? Not that DOE has no interest, but MMS/Department of Interior are the lessors, and generally the well operation authority, for the government for this area of the Gulf; why is DOE micro-managing well operations? A copy of the actual BP lease for the Macondo Well at Mississippi Canyon 252 is here. And who else from DOE beside Steven Chu was tasked to this “brain trust” and calling shots for the BP Macondo catastrophe reclamation effort? What information and evidence regarding the compromised and blown state of the Macondo Well are they still withholding from the public? Oh, and another thing, under the terms of the lease, BP was, and is, supposed to be providing weekly reports, well logs and other information to MMS. Where is all that information, and why is none of it, apparently, available to the public?

The Wall Street Journal article Nelson cited only reinforces the the above facts, issues and questions, but also gives a view of how rickety the BP casing work was on its Macondo well, why there was an almost immediate blowout and why it is a given there is little, if any, integrity of the well bore:

By April 14, when BP filed the first of three permits that would later be amended, the London-based oil company had already faced many problems with the well, including losing costly drilling fluid and fighting back natural gas that tried to force its way into the well. The problems had caused BP to use eight pieces of steel pipe to seal the well, rather than the planned six pieces. The permit filed on April 14 dealt with the eighth and final section, which hadn’t yet been installed in the well.

BP had hoped to get a 9 7/8-inch pipe—big enough to handle a lot of oil and gas—into the reservoir. But for the final section, the largest pipe they could fit was a 7-inch pipe. The company had to decide whether to use a single piece of pipe that reached all the way from the sea floor down to the oil reservoir, or use two pipes, one inside the other.

The two-pipe method was the safer option, according to many industry experts, because it would have provided an extra layer of protection against gas traveling up the outside of the well to the surface. Gene Beck, a longtime industry engineer and a professor at Texas A&M University, said the two-pipe method is “more or less the gold standard,” especially for high-pressure wells such as the one BP was drilling.

But the one-pipe option was easier and faster, likely taking a week less time than the two-pipe method. BP was spending about $1 million per day to operate the Deepwater Horizon.
……
At 9:54 a.m. on April 15 BP filed another permit informing the MMS of a correction. Rather than using a 7-inch-wide pipe the whole way, it planned to run a tapered pipe that was wider at the top than at the bottom. This was approved by the MMS seven minutes later.

Then, at 2:35 p.m., BP filed another revision. This one informed the MMS that it had “inadvertently” omitted mention of a section of pipe already in the well. Four and one-half minutes later, MMS approved this permit also.

Last year, the MMS floated a proposal to require all companies to “document and analyze” all major changes. BP responded during a comment period that the proposed safety rules were unnecessary.

Less than five days and a whole lot more warning signs later, the Macondo well had blown, the Deepwater Horizon rig had exploded and was on fire and the biggest environmental disaster in American history was well underway. And now, 55 days later, and a series of ever more destructive and futile attempts to stanch the flow of hydrocarbon from the mouth of the Macondo, we stand with a well head leaking more than ever into the waters of the Gulf of Mexico and its fragile ecosystem. Not to mention serious concerns as to whether the oil and gas pollutants are also seeping up from the immediately surrounding sea floor.

To return to the original issue of this post, it appears quite clear Florida’s Senator Bill Nelson was on very solid ground with his statements about the compromised state of the Macondo well casing and well bore walls, there is a record of everyone from BP officials to government officials to drilling professionals to outside experts agreeing on the substantial loss of well integrity. The only part of the well that appears to still have any known integrity is the cement collar immediately below the well head, and there is little reason to believe even that will necessarily remain intact under the circumstances.

The only question at this point whether or not there has been seepage or leakage detected from the sea floor surrounding the Macondo well head as suggested by Senator Nelson and Professor MacDonald and, if so, to what extent. Senator Nelson and the public are entitled to answers from BP, and for that matter from the Obama Administration and its officials, to the material and germane questions raised in Nelson’s June 2 letter to BP, and they are entitled to them immediately. Lastly, the Obama Administration, the DOE and its head Steven Chu, and BP should all explain exactly what role each played in the ill fated Top Kill and Junk Shot operations, and why the DOE, and through what agents, was so centrally involved in the Top Kill/Junk Shot and what damage they caused to the Macondo well structure in the process.

The economic and environmental damage resulting from the exploding fireball compromise of the Deepwater Horizon oil platform may be unprecedented, with the potential to emit the equivalent of up to four Exxon Valdez breakups per week with no good plan to stop it. There will be plenty of finger pointing among BP, Transocean and Halliburton, while it appears the bought and paid for corporatist Congress put the screws to the individual citizens and small businesses by drastically limiting their potential for economic recovery; all in the course of insuring big oil producers like BP have effectively no damage liability for such losses.

How did this happen? There are, of course, a lot of pertinent factors but, by far, the one constant theme underlying all is the mendacious corporate servitude of the Republican party, their leaders and policies. The arrogance and recklessness of BP and its oily partners gestated wildly under the Bush/Cheney administration.

Until the turn of the decade, BP had a relatively decent safety and environmental record compared to others similarly situated. Then BP merged with American oil giant Amoco and started plying the soft regulated underbelly of Republican rule in the US under oil men George Bush and Dick Cheney. Here from the Project On Government Oversight (POGO) is an excellent list of BP misconduct, almost all occurring and/or whitewashed under the Bush/Cheney Administration. If you open the door, foxes eat the chickens.

But it is not just regulatory policy behind the open and notorious recklessness of BP and its ilk, it is intentional policy at the Department of Justice as well. Here is how the former Special Agent In Charge for the EPA Criminal Investigative Division, Scott West, described the DOJ coddling of BP under the Bush/Cheney Administration:

In March 2006, a major pipeline leak went undetected for days, spilling a quarter-million gallons of oil on the Alaskan tundra. The spill occurred because the pipeline operator, British Petroleum (BP), ignored its own workers warnings by neglecting critical maintenance to cut costs. The spill sparked congressional hearings and a large federal-state investigation. Despite the outcry, in a settlement announced in late October 2007, BP agreed to one misdemeanor charge carrying three-year probation and a total of only $20 million in penalties (a $12 million fine with $8 million in restitution and compensatory payments).

The settlement resulted from a sudden U.S. Justice Department August 2007 decision to wrap up the case, according to West. That precipitous shutdown meant

Felony charges would not be pursued and the agreement foreclosed any future prosecutions. No BP executive faced any criminal liability for a spill second in size only to the Exxon Valdez;

The fines proposed by Justice (to which BP immediately agreed) were only a fraction of what was legally required under the Alternative Fines Act. EPA had calculated the appropriate fine levels as several times what Justice offered BP – ranging from $58 million to $672 million, depending upon the economic assumptions; and

The BP Alaska settlement is part of a pattern of “lowball” corporate public safety and pollution settlements engineered by the Bush Justice Department. In that October 2007 settlement package, Justice asked for only $50 million in fines for the BP Texas refinery explosion in which 15 people died – penalties not carrying strong deterrent value for a big multi-national corporation

The above is verbatim from a formal complaint filed with the Inspector General of the DOJ, Glen Fine, by West and a group known as Public Employees for Environmental Responsibility (PEER). The complaint went on to quote West as follows:

Never …have I had a significant environmental criminal case shut down by the political arm of the Department of Justice, nor have I had a case declined by the Department of Justice before I had been fully able to investigate the case. This is unprecedented in my experience.

When a chief agency criminal investigator cannot get traction for the prosecution of crimes, and considers the internal DOJ policy to be complicit, you might have a problem. It appears, however, the complaint went nowhere, which is not IG Glen Fine’s fault as, once again, DOJ accountability has been prevented by the fact that, unique to executive agencies, the DOJ IG has no jurisdiction over the conduct of the attorneys in the DOJ and goodness knows neither OPR nor David Margolis would countenance such an investigation.

By the way, since I have not seen anybody else mention it, much less the Obama/Holder DOJ appear to care, it should be pointed out that BP, despite the bend over sweetheart comprehensive deal the Bush DOJ worked out for them, is still on at least two different criminal probations for their malevolent reckless and intentional conduct. One case was for the Alaska spill and BP was placed on criminal probation for three years starting in December 2007. The other case was a felony plea resulting from the Texas City Refinery explosion. Here is the plea agreement from the Texas City Refinery case and here is the concurrent statement of facts in support thereof.

As special Agent Scott West complained, they were indeed sweetheart deals cut in a comprehensive settlement swath by the Bush DOJ; nevertheless there are still multiple criminal probations BP is still operating under. Where is the DOJ on this now? Contemplating a third strike, repeat offender takedown of BP? No, there has been nary a peep in this regard from the Obama/Holder DOJ. In fact, the only lawyers DOJ has indicated they are assigning the BP Deepwater Horizon catastrophe are Civil Division and Natural Resource Division talking heads Tony West and Ignacia Moreno. Nope, par for the course, the DOJ is sending managers to smooth the waters, not prosecutors and investigators to bring accountability.

The DOJ under the politicized Republican rule of Bush and Cheney instituted a preference for coddling corporate malfeasants like BP and Exxon with lax civil measures instead of punitive criminal prosecutions and, in the process, created a get rich windfall program for their friends to serve as “monitors” for the civil settlements. The policy was begun when Bush first took office and was formally instituted as DOJ policy by Bush/Cheney water carrier Paul McNulty in 2006. From an April 2008 New York Times article by Eric Lichtblau:

In a major shift of policy, the Justice Department, once known for taking down giant corporations, including the accounting firm Arthur Andersen, has put off prosecuting more than 50 companies suspected of wrongdoing over the last three years.

Instead, many companies, from boutique outfits to immense corporations like American Express, have avoided the cost and stigma of defending themselves against criminal charges with a so-called deferred prosecution agreement, which allows the government to collect fines and appoint an outside monitor to impose internal reforms without going through a trial. In many cases, the name of the monitor and the details of the agreement are kept secret.
…..
But critics of the agreements question that assertion. Charles Intriago, a former federal prosecutor in Miami who specializes in money-laundering issues, said that huge penalties, like the $65 million fine for American Express Bank International in 2007, were “peanuts” compared with the damage posed by a criminal conviction.

Neutering the criminal deterrent of the DOJ criminal process for big business and corporate interests, and gutting of regulatory agencies, is the Republican ethos. It is what they live for, and what gets us where we are with catastrophes like the Gulf oil slick. A guest poster at Digby, Debcoop, hit the nail on the head:

The fault lies with the ideology and mores of the Republican party and its theory of government. Their solution to this country’s energy’s future is to drill anywhere and everywhere. In their theory of government, government has no right to control who, what, where and how the natural resources of this country or this planet are exploited or not exploited, resources that are needed by us all and are needed to protect us all. Like my friend Jim Gilliam said in a private email, government is supposed regulate corporate behavior not just be their willing partner/follower. This is a lesson that we all need to keep in mind and that includes the president.

In the Republican theory of government, government regulation is inherently evil or at least counterproductive. So under George Bush et al, the only regulation in the Gulf has been self regulation. This oil spill is the fault of Republican ideology.

It is who the Republicans are, and what they do. And when they cannot accomplish their goals by legislating in service to corporate masters, they pack the Supreme Court with corporatist ideologues like Roberts, Alito and Thomas. The result is directly displayed by the 2008 decision in Exxon Shipping Co. v. Baker:

…a nakedly activist decision that pulls its standard for limiting damages out of thin air, demonstrates hostility to the role of Congress, and continues a pattern of ignoring the Framers’ views on the importance of civil juries. Progressives would do well to treat this decision with resounding scorn, and highlight it as a textbook example of why the Supreme Court matters.

The case arose from the 1989 Exxon Valdez spill, wherein Exxon allowed Joseph Hazelwood, a relapsed alcoholic, drunk at the time, to the helm of a massive oil tanker navigating the treacherous waters of Alaska’s Prince William Sound at night. The ship ran into a reef, ruptured and spilled 11 million gallons of crude oil, devastating the Sound’s fragile and pristine ecosystem. Grant Baker is one of 32,000 commercial fishermen and Alaska Natives that sued Exxon for their economic losses and for punitive damages against Exxon.

More than 6,000 of these victims have died during the course of this litigation, which Exxon has tenaciously prolonged for 16 years with appeal after appeal. In 2006, the Ninth Circuit Court of Appeals cut what was originally a $5 billion jury verdict down to $2.5 billion. Today, the Court cut this again for Exxon to a maximum of $500 million.

It is not just the Republicans however, Democrats have become the same kind of servile lackeys for big corporate interests as the Republicans. The Obama DOJ has continued the Bush/Cheney/McNulty policy of coddling corporate criminals with civil treatment as opposed to hard criminal prosecution and conviction of both corporations and their leaders. And if Barack Obama follows through with his impostrous determination to appoint a “moderate consensus builder” like Elena Kagan to replace John Paul Stevens, you can expect even more corporatist decisions from the Supreme Court.

Business/government symbiotic corporatism is becoming the defining characteristic of our government; the United States is on the road to neo-feudalism in a land run by the New Robber Barons. The oil slick in the Gulf can either be a wake up call, or grease for a further slide down the current slope.

UPDATE: Jason Leopold has a new article up at Truthout that meshes perfectly with this post. As I noted above, BP was on criminal probation for the Texas City Refinery fire; Jason follows up with the literally dirty details of just how repetitively and badly BP has wantonly violated said probation:

“It was the most comprehensive and detailed investigation the CSB has ever done,” Bresland said March 24, marking the fifth anniversary of the refinery explosion. “Our investigation team turned up extensive evidence showing a catastrophe waiting to happen. That cost-cutting had affected safety programs and critical maintenance; production pressures resulted in costly mistakes made by workers likely fatigued by working long hours; internal audits and safety studies brought problems to the attention of BP’s board in London, but they were not sufficiently acted upon. Yet the company was proud of its record on personnel safety.” According to OSHA, BP has not only failed to comply with the terms of its settlement agreement, it has knowingly committed hundreds of new violations that continue to endanger the lives of its refinery workers. ….. Still, as highlighted in a January 2007 report issued by a panel chaired by former Secretary of State James Baker III, systemic issues related to process safety were not limited to the firm’s Texas City refinery. In fact, they were widespread.

Leopold’s article is a good read and gives a good bead on the reckless operating philosophy of BP which gestated under the lax regulatory and prosecutorial Republican regime of Bush/Cheney as discussed in the body of this post above.