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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 01:00 PM
Original message
Filibuster of Dawn Johnsen for OLC Head May Be Key to Impunity for Bush Administration Crimes
Edited on Sun Apr-26-09 01:05 PM by Time for change
Our nation has a decision of monumental importance to make.

Throughout the eight years of the Bush/Cheney administration, top government officials have strayed further from the rule of law and moral decency than at any time since our nation first took the lead in establishing a system of international law and morality.

Following the Nazi Holocaust and World War II the recognition of the need for such a system became acute and widespread. The United Nations was conceived by President Roosevelt and led to fruition by President Truman, in an effort to make it a reality. Our nation also took the lead, through the Nuremberg trials, in holding the perpetrators of war crimes and crimes against humanity accountable for their actions.

But the Bush administration did away with all that. Not only did they set up a torture regime, but they used that torture regime largely to force false confessions to justify an illegal and immoral war of aggression.

If we allow that to stand; if we confer impunity upon the perpetrators of those crimes, then we effectively condone them and thereby allow a terrible precedent to stand.

Of all the single actions that could lead towards the re-establishment of the rule of law and morality in our country, the confirmation of Dawn Johnsen to head the Office of Legal Counsel is perhaps the most important.

It was from the OLC that John Yoo authored his infamous torture memos. As head of the OLC, Dawn Johnsen will be the principle legal advisor to the Attorney General and responsible for providing legal advice to the President and other Executive Branch agencies. She will be in the third most authoritative position, next to Eric Holder and Obama himself, to pursue the many serious crimes committed by the Bush/Cheney administration.

Johnsen graduated from Yale Law School and was an OLC official in the Clinton administration. Her strong and publicly vocal opposition to Bush administration crimes make it seem unlikely that she will stand for allowing those crimes to be ignored. If she is confirmed it seems highly likely that she will aggressively push for a full investigation into those crimes, with appropriate action taken in response to wherever those investigations lead.

Yet, Republicans are threatening to filibuster her confirmation precisely because they are afraid that she will do that.


DAWN JOHNSEN ON TORTURE, THE LIMITS OF EXECUTIVE POWER, AND ACCOUNTABILITY

On Bush administration torture

In April 2008, Johnsen expressed her outrage over the revelation of the latest Bush OLC torture memo:

Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it all demand our outrage.

We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise will threaten the rule of law and not just for the remaining nine months of this administration, but for years and administrations to come.

OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. . . .

John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism and withdrawal of the memo.

I know Yoo's statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.

Recall that the last President who took the view that "when the President does it that means that it is not illegal" was forced to resign in disgrace. . . .

And Johnsen is definitely not one to limit accountability to low even high level personnel:

Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not. Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity In fact, the ones at Justice who didn't last are the officials who dared to say "no" to the President which, by the way, is OLC's core job description. . . .The correct response to all this? Outrage directed where it belongs: at President Bush, as well as his lawyers.


On the limits of executive authority

Johnsen is an expert on the limitations of Executive power and OLCs role in enforcing those limitations, and she has written about that issue:

OLC must be prepared to say no to the President. For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government. The Constitution expressly requires the President to "take Care that the Laws be faithfully executed." This command cannot be reconciled with executive action based on preferred, merely plausible legal interpretations that support desired policies If such advice were given with a wink and a nod so that the President was not actually misled, OLC would be wrongfully empowering the President to violate his constitutional obligations.

She has also written forcefully about the Bush administrations abuse of its power, and her disgust with Congress for allowing it:

I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else) despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.

She has also dealt with the issue of how the OLC should seek to ensure Executive Branch compliance with the rule of law, and she has signed on to guidelines to that effect:

OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. Transparency also promotes confidence in the lawfulness of governmental action


On holding criminals accountable for their crimes

If there was any doubt from the above writings by Dawn Johnsen that, as head of the OLC, she would be intent on holding the Bush administration accountable for its crimes, here is what she wrote on that subject in March 2008, in an article titled Restoring our Nations Honor:

I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. . . .

Whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed. . . .

The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of us who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.


IF YOU AGREE

The above statements by Dawn Johnsen leave little doubt as to how she will proceed with this issue. If you agree with me that her appointment to head the OLC is likely to go a long way towards restoring the rule of law in our country and our moral standing in the world, then please consider contacting your Senators to urge them to support her confirmation. Here is a link you can use to do that. Add your own message to the comment box, or feel free to use mine:

Although President Obama has declared that our nation will no longer torture, the precedent set by the Bush administration that enabled our government to torture unknown numbers of our detainees remains in effect. That precedent will continue to remain in effect until we demonstrate as a nation that we will not allow crimes against humanity to be committed in our name with impunity.

Some U.S. Senators are threatening to filibuster the appointment of Dawn Johnsen to head the Office of Legal Counsel because they fear that she will work to uphold the rule of law by advocating the prosecution of government officials involved in torture or other crimes against humanity. We must not allow that to happen. We need an independent Office of Legal Counsel that will not be afraid to uphold the rule of law in our country and take steps to restore our moral standing in the world.

Please support the confirmation of Dawn Johnsen to head the Office of Legal Counsel.

For additional help, you can view the past 25 messages sent (of the current total of 5505) through the above link. Here is a New York Times editorial supporting Dawn Johnsens confirmation. And this article describes the support of former conservative OLC head Douglas Kmiec.

Glen Greenwald, referring to Johnsens writings, sums up the importance of Dawn Johnsens confirmation:

Anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn't merely John Yoo but Bush himself, repeatedly demanding "outrage," criticizing the Democratic Congress for legalizing Bush's surveillance program, arguing that we cannot merely "move on" if we are to restore our national honor all while emphasizing that the danger is unchecked power not just for the Bush administration but "for years and administrations to come" is someone whose appointment to such an important post is almost certainly a positive sign It's hard not to consider this encouraging.

But it will be a terrible, and very possibly fatal blow to our efforts to hold Bush administration officials accountable for their crimes if the U.S. Senate fails to confirm her nomination.
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Dragonfli Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 01:39 PM
Response to Original message
1. K&R - ps I don't think Reid will fight for her because he never fights for anything, also
He is far from a strong advocate for rule of law or accountability, in fact he appears to loathe both concepts.

I hope to be proven wrong as she seems well qualified for the job and is one of the few out there that favors rule of law these days.
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Skidmore Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 04:25 PM
Response to Reply #1
10. Reid cosponsored Bybee with Ensign and
still swears he's an "honorable man."
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Dragonfli Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 05:01 PM
Response to Reply #10
11. Good points
That was just part of what I was alluding to, he routinely does crap like that.
:hi:
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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 10:30 PM
Response to Reply #1
21. Yes, I'm not putting much faith in
Edited on Sun Apr-26-09 10:31 PM by Time for change
Reid fighting very hard for this. But certainly he needs to at least support the nominee of his own Party's president in the absence of any good excuse not to. Hopefully that will be enough if there is enough pressure put on certain moderate Republicans not to filibuster.
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Dragonfli Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 10:44 PM
Response to Reply #21
23. He may hold his nose and do the bare minimum for appearances.
This may be very cynical, but I believe that if he had his druthers he would find a sneaky way to block it. He absolutely hates, it would appear, the prospect of holding the GOP accountable. Look at his record. Now look at her and tell me he doesn't know that she would be on the other side of that issue. In fact He may even fear the fact that she would not overlook something because a (D) was attached to it.

Yes I am very cynical about him, I have been watching his shenanigans for quite a while now.
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bjobotts Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 11:08 PM
Response to Reply #23
25. Dawn Johnsen is the best nomimnee for a post of all nominees so far
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bjobotts Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 11:10 PM
Response to Reply #25
26. Because she is perfect for the job, repubs will do everything possible to block her.
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bjobotts Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 11:12 PM
Response to Reply #26
27. They should not be allowed to filibuster her nomination.This is important enough to end the filibust
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druidity33 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 02:10 PM
Response to Original message
2. K&R
It's real important she get confirmed.

Time to call the Congress critters folks!

:)

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hootinholler Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 02:13 PM
Response to Original message
3. Let them
Make them actually fillibuster until the recess that the republicans can't stop and then appoint her anyway.

I'm tired of the shit.

-Hoot
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NewJeffCT Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 02:20 PM
Response to Original message
4. well, time to write my senators
Any Republicans on the fence - Specter, Collins, Snowe?
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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 02:29 PM
Response to Reply #4
5. Specter said he will "withhold judgment" until he meets with her personally
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olegramps Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 06:24 AM
Response to Reply #5
37. It is past time to kick his ass out of the Democratic Party.
Edited on Mon Apr-27-09 06:25 AM by olegramps
I was referring to Nelson.
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Overseas Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 02:57 PM
Response to Original message
6. K&R !! //nt
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Overseas Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 03:01 PM
Response to Original message
7. Thanks for the action link. I just sent my message.
I really admire Dawn Johnsen and look forward to her confirmation.
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stillcool Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 03:23 PM
Response to Original message
8. Thank you much! Done.
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L. Coyote Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 03:42 PM
Response to Original message
9. Thanks. Rec #20
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chill_wind Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 05:10 PM
Response to Original message
12. Ben Nelson is saying he will vote against her.
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Dragonfli Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 05:17 PM
Response to Reply #12
13. Of Course! All the republocrats have to work extra hard now that their allies are out of power.
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NewJeffCT Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 06:27 PM
Response to Reply #12
16. Vote against? But would he support a filibuster?
just curious.
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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 08:54 AM
Response to Reply #12
42. That's too bad -- Hopefully he won't go so far as to join a filibuster
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Mithreal Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 05:37 PM
Response to Original message
14. K&R nt
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brer cat Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 05:39 PM
Response to Original message
15. Thanks for another great post!
I think it is very important that Dawn Johnsen does not come across as particularly partisan. She supports the law and the constitution period. I have no doubt she would be a pit bull on Obama's tail if he ever tried to pull something like this. I can't think of another person I would rather have in that position.

Having said that, there is no question that the rethuglicans will paint any attempt to investigate this issue as strictly partisan. However, I believe she will rise above the clamor and do a very professional job.

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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 08:57 PM
Response to Reply #15
19. Thank you -- I agree that they will go to great lengths to paint any attempt to hold
the Bush administration accountable for their crimes as strictly partisan.

But hopefully the American people are catching on and won't be fooled this time. Hopefully most Americans will recognize that prosecuting crimes against humanity is not a partisan issue.
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robdogbucky Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 07:19 PM
Response to Original message
17. K&R
Time for Change, great post and right on time.

Could you please though change the spelling in your header to "Immunity," from "Impunity," whereas in the legal sense in which you are referring it is Immunity, as it is used in the blue box excerpts you so kindly and brilliantly put together;

"...to act contrary to federal statutes with close to immunity In fact, the ones at Justice..."

"...to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege,..."

I would hate to have your great post subject to untoward criticism due to simple word transposition. We make fun of freepers for their spelling/context gaffs and would think we have a higher standard. Impune is close, but not in this legal sense.

Great post though.


robdogbucky

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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 07:57 PM
Response to Reply #17
18. Thank you
It is too late to change, as posts may be edited only for one hour within posting.

Anyhow, I did mean to say impunity -- I meant it as the common usage of the term (which is very close to the legal meaning of "immunity") not as a legal term -- as in this definition of impunity, which is "exemption from punishment".

As I see it, failure to prosecute Bush for his crimes would be better characterized as impunity, since that would not make him immune from prosecution in the legal sense.


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DCKit Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 09:24 PM
Response to Original message
20. "...Key to Impunity..." and nobody else caught it?
It's brilliant, even if it was a Freudian slip.
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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 08:00 AM
Response to Reply #20
40. Sorry, I don't get it.
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Demoiselle Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 12:05 PM
Response to Reply #20
49. Don't they mean "immunity?" (eom)
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vaberella Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 10:34 PM
Response to Original message
22. I have a question...
I'm not familiar how these things go. Can O overrule their votes?! And just appoint her.
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Dragonfli Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 10:47 PM
Response to Reply #22
24. By recess appointment only, temporary and in bad form - The type of thing a Bush would/has done
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vaberella Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 11:38 PM
Response to Reply #24
30. Ugh...which Senators do I have tocall and pressure to vote for her?! n/t
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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 11:18 PM
Response to Original message
28. If she isn't confirmed it will certainly get Pres Obama off the hook for prosecuting the torturers.
The repubilCons may not have to filibuster. I am not sure hapless Harry can get 51 votes for confirmation.
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ColbertWatcher Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-26-09 11:35 PM
Response to Original message
29. It's high time we clean the DoJ of all Federalist Society burrowers. n/t
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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 12:03 AM
Response to Reply #29
31. It's time we cleaned the Democratic Party of the republiCon leaning DINO's. nm
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ColbertWatcher Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 06:15 AM
Response to Reply #31
36. We can do both, but the cleaning the DoJ of Federalist Society cultists is critical. n/t
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MikeH Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 02:25 AM
Response to Original message
32. K & R; I just used your link to contact my senators, Boxer and Feinstein
I sent a message similar to yours.
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eridani Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 02:39 AM
Response to Original message
33. Can't Obama just appoint her during a break or something?
Seems that I remember the former Sociopathic Shitstain in Chief doing stuff like that.
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SpartanDem Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 04:25 AM
Response to Reply #33
34. Sure can, this isn't anything new
Clinton did 140 of them, George Washington appointed John Rutledge the second chief justice through a recess appointment. If she can't be confirmed through the Senate then he should absolutely use a recess appointment
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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 07:39 AM
Response to Reply #33
39. I doubt very much that he'll do that
The truth of the matter is that he doesn't NEED Dawn Johnsen in order to proceed with prosecutions. It is Holder's decision. Given Obama's apparent disinterest in the subject, it is difficult to understand why he nominated Johnsen in the first place. The only thing I can think of is that he really wamts to prosecute those who committed serious crimes, but he is very afraid of being accused of being "partisan". If Johnsen is confirmed, she will be certain to press the issue very hard. Then Obama can be seen as reluctantly supporting prosecutions.

But if he appoints her in Congress's absence he will be seen as taking an aggressive role in the matter. I think it is highly unlikely that he will do that, or even fight hard for her. We have to put on the pressure from the bottom.
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certainot Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 05:48 AM
Response to Original message
35. your local limbaugh station will do the groundwork for the obstruction
at the appropriate times limbaugh and hannity will amp up the uproar of 'popular' indignation against johnsen.

it is well past time to demonopolize the public radio airwaves so we can have a real democracy.
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Enthusiast Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 12:56 PM
Response to Reply #35
50. "Demonopolize", I like that.
And I'm all for it!
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pleah Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 06:48 AM
Response to Original message
38. K&R
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Usrename Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 08:42 AM
Response to Original message
41. Using torture in order to fabricate a false narrative.
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ThomWV Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 09:06 AM
Response to Original message
43. There is a Holiday and Senate Recess coming up in just about 1 month
All it will take is a 3-day-weekend and she's in, if President Obama dares.
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MasonJar Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 09:15 AM
Response to Original message
44. Please, DUers, use the link to send a message to your reps and your
newpapers. It is easy and takes very little time. Thanks for the link. My reps of course, being two degenerates, McConnell and Bunning, will ignore my message but the Courier Journal will not, nor will Rep Yarmuth. And McConnell and Bunning need to know that they are not representing my views.
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annabanana Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 09:18 AM
Response to Original message
45. The Senate phones are really busy this morning..
I guess all the DUers are calling in at the same time . . . .
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OnyxCollie Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 09:21 AM
Response to Original message
46. K&R. nt
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chill_wind Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 10:02 AM
Response to Original message
47. Marty Lederman currently has John Yoo's desk
Edited on Mon Apr-27-09 10:04 AM by chill_wind
and he's been aboard the new DOJ by all accounts since day 1. We keep forgetting about him. I'd like to think he's a strong part of the back-up Pres Obama & Holder are getting for some of the resolve to the increased transparancy, revising the FOIA process etc.

I posted links to a bunch of his writings in an older thread-- this one was in the context of the DOJ action in Jewell v NSA (I think-- the entire thread was moved and all I can find is my diaried post).

http://journals.democraticunderground.com/chill_wind/141


We need Dawn Johnsen and we can't let the GOPfascists win this one-- but we are already halfway home with a very good guy IMHO that the GOPhers can't touch.

To the GOPHers:
He's already there, he's working, he doesn't like a lot of things you did-- and you can't touch him or his advice. There's nothing to stop him from being promoted. Suck on that, Republicans.
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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 10:15 PM
Response to Reply #47
52. Thank you for the links to Marty Lederman's writings
That's great to know about.
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chill_wind Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 11:16 PM
Response to Reply #52
53. My pleasure.
:thumbsup:
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raysr Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 11:54 AM
Response to Original message
48. "Nukular option"
on fillibuster. Kill it. The Dems never used it when it would've made a difference i.e. Alito.
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Enthusiast Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-27-09 01:03 PM
Response to Original message
51. K&R, GOP, the party of obstruction.
Seems to me this effort is a waste of their energy. I hope they waste away to nothing.
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