Very smart commenter at TPMmuckraker

This guy seems to know what he's talking about. You have to do a lot of scrolling to find his posts, but it's worth it.

Yes, and there's a rule about that as well: ORCON, it's illegal go classify evidence of illegal activity.

Which takes us back to the dispute over Cheney's assertion that "that" EO "didn't apply." The "EO that did or didn't apply" contains the rules on ORCON.
It doesn't matter whether the "_EO_" did or didn't apply, the _32 CFR 2800_ does apply: It has OVP name on it. It can be enforced through prosecutions; and that CFR _does_ list EOs which _do_ apply.

Whether the _standards listed_ does or does not apply is meaningless; the issue is whether the _requirement_ regardless which standard is used, ignored, or explained away is _legally enforceable_. Arguing over which EO does or doesn't apply is a distraction from [a] the ORCON requirements which prohibit classification of that data; and [b] the data which _must_ be protected per the applicable CFR: 38 CFR 2800.
- - - -
This takes us back to the RNC e-mails. Recall, the White Hose legal counsel did something very stupid:
1. Determined that the information would be protected by privilege
2. Created an illegal backup database
3. Destroyed that database

Here's the problem, and why we know legal counsel was involved: Once someone assumes a database will "never" see the light of day; they have a choice: Do they talk candidly; or do they use that "to be forever hidden" database to hide illegal activity?

Here's how we know something very important: Once the evidence of illegal activity was _known_ to be revealed; and that _claims_ of executive privilege would _fail_, then they had a problem: The backup e-mail could be detected; and the _existence_ and content of that backup e-mail could be breached.
In other words, one does not destroy evidence in the RNC e-mails unless they believe that privilege would fail; but then contradict themselves and say, "But we have executive privilege". That defies reason. Again, if the _expectation_ of privilege -- going forward from time of creation -- were real, then there would have been [wait for it] [a] no reason to have a backup systems; no reason to have an e-mail system that violated the law; and no reason to _destroy_ the very thing that would "forever" enjoy a shield of privilege.
- - -

Rule: Privilege isn't a power: It's a _claim_ that the _court_ doe snot have to recognize. If a claim of privilege has been abused; or adverse inferences _about missing data_ suggest that the evidence was _illegally destroyed_, the claim of privilege is one that the court is _not required_ to recognize. A defendant can do things that will make the claim meaningless, without effect, or irrelevant: By disclosing that information in an e-mail, as Miers did with the DoJ e-mail.
Executive privilege isn't something the _court_ is required to recognize. It can be claimed, asserted, and demanded as a "right" but that's meaningless: It is a _court recognized_ claim that the court -- for whatever reason it chooses -- can refuse.

ETA: One of the Kos posters went through and pulled all of Anon's posts into one diary.

Bush Has Lost Noonan

Peggy Noonan, Reagan's speechwriter, weighs in on Bush and the vox populi. Interesting reading.

I suspect people pick up with Mr. Bush the sense that part of his drama, part of the story of his presidency, is that he gets to be the romantic about history, and the American people get to be the realists. Of the two, the latter is not the more enjoyable role.

Americans have always been somewhat romantic about the meaning of our country, and the beacon it can be for the world, and what the Founders did. But they like the president to be the cool-eyed realist, the tough customer who understands harsh realities.

With Mr. Bush it is the people who are forced to be cool-eyed and realistic. He's the one who goes off on the toots. This is extremely irritating, and also unnatural. Actually it's weird.

The Troop Funding Trap

italics and bold in the commentary below are mine)
--------------------------------------------------------------
What are you supposed to do, according to supporters of the Iraq war, if you think that the war is a dreadful mistake? Suppose you are a member of Congress, elected by constituents who also, like most Americans, according to opinion polls, oppose the war. Is there any legitimate action you can take? Or must you simply allow the war to go on and let young Americans die in what you regard as a bad cause? What are your options?

The Constitution says, "The Congress shall have the Power . . . to declare War." That power does not mean much unless it includes the power not to declare war as well. But presidents from both parties have pretty much stolen Congress's war power, with the ordinarily "strict constructionist" Republicans taking the lead. Congress has stood by and not done much -- but what could it do? As Stalin supposedly said about military advice from the Vatican, "The Pope! How many divisions has he got?"

Last week President Bush condescended to sign a bill authorizing $100 billion for his war, but only after any serious timetables or criteria or deadlines for troop withdrawal were stripped from the legislation. There was a time, circa 1999, when Republicans considered it the height of naivete, irresponsibility and indifference to the fate of American soldiers to commit any troops to action in a foreign country without what used to be called an "exit strategy." That was when the president was a Democrat. Now it is considered the height of naivete, irresponsibility and indifference to the fate of American soldiers to suggest the possibility of any exit strategy short of triumph. If you do, you are betraying the troops. And no one sees actual triumph in the cards, so there is no exit strategy.

And woe betide any politician who suggests that waiting for complete triumph might not be the only alternative -- just in case democracy, prosperity, peace and brotherhood don't flower in Iraq next week. Sens . Hillary Clinton and Barack Obama opposed the war-funding bill because it lacked even the mealy-mouthed timetables in an earlier version that Bush vetoed.

For this they got crocodile tears from Sen. John McCain. Squandering a bit more of his war-hero capital, McCain came close to accusing the two leading Democratic presidential candidates of treason: "I was very disappointed to see Senator Obama and Senator Clinton embrace the policy of surrender." Former Massachusetts governor Mitt Romney, with no known foreign policy expertise or even interest (unless you count his "mission" to France after college, trying to convert the French to Mormonism), attributed Clinton's and Obama's votes to "an inexperienced worldview on national security."

A confused Wall Street Journal editorial last week seemed to be addressing this question of how an elected representative might legitimately oppose a war in our democracy. It began by accusing House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid of cowardice. They "claim to oppose the war and want it to end, yet they refused to use their power of the purse to end it."

So there is a "power of the purse," you see. Congress can cut off funds for a war that people don't like. In this connection, older readers might recall the Iran-contra affair, in which sources of money were found to keep the contra war going in Nicaragua without Congress's even knowing about it. This met with the enthusiastic approval of the Wall Street Journal, even though funds you do not know about are hard to cut off.

But what happens if you, as a member of Congress, do attempt to use the power of the purse? Sens. Clinton, Obama and Chris Dodd (also running for president) voted against the final Iraq funding bill because all meaningful deadlines and timetables had been stripped out so that President Bush would sign it. That Wall Street Journal editorial accuses these three Democratic senators of "vot[ing] to undermine U.S. troops in the middle of a difficult mission." If this is true of last week's vote, it will always be true of any attempt to cut off a war by cutting off funds. Unless the Journal is in favor of undermining U.S. troops, this makes the alleged "power of the purse" unusable.

Advocates of the current war who enjoy the spectacle of war opponents caught in this trap of laws and logic had better hope that every military action a president chooses to engage in from here on out is as wonderful to them as is the war in Iraq. Because there is nothing war-specific about this line of argument. It would work just as well on an invasion of Canada or an aerial bombardment of Portugal. The president can do it if he wants to, and no one can legitimately stop him.

Of course, the president is elected, and in that sense he is acting as proxy for the citizens when he decides to take our country into a war. Right? Well, not quite. Let's leave aside the voting anomalies of the 2000 election. When this president first ran for national office, he campaigned on a platform of criticizing his predecessor for engaging in military action (in Kosovo and Somalia) without an exit strategy. He mocked the notion of trying to establish democracy in distant lands. He denounced the use of American soldiers for "nation-building." In 2000, if you were looking for a way to express your disapproval of the policies and prejudices that later got us into Iraq, your obvious answer would have been to vote for George W. Bush.
Check and mate.

By Michael Kinsley
Saturday, June 2, 2007; Page A13

The Troop Funding Trap

Kakistocracy - a REAL word! :-)

I learned a great new word to be applied to the Bush Administration: kakistocracy. It was apparently one of the Scripps Spelling Bee words, although I can't corroborate that.

Kakistocracy is, according to Encarta ("government by the most unscrupulous or unsuitable people, or a state governed by such people") and Wikipedia, ("rule by the least-able or least-principled of citizens...a form of government in which the people least qualified to control the government are the people who control the government.")

Can't think of a better description of the current state of affairs.

Now or never?

Could be...

...the Democrats' apparent plan to wait out the clock on the Bush Administration is an utterly dangerous thing to do --

...not because Bush is dangerous, but because a future President with at least twice his current approval ratings

...and all of Bush's acquired powers and asserted (without effective contet) precedents

...will be tempted to do everything we always feared Bush would do the Republic ---

...and do it to the sound of madly cheering crowds.

And later...

And that is enough support, plus the power concentrated in Bush's hands, to allow Bush...

to have his war and fund it, too....

...to commit high crimes and misdemeanors, and to delegate them, too...

...to refuse summons, to produce evidence and testimony, to lie blatantly and cheerfully under oath, knowing that no one dare call the least of them out for it...

...to destroy in plain sight evidence of the greatest, most systematic destruction of our national security infrastructure since the British sailed up the Potomac and burned Washington DC to the ground and shelled every major port city on the Eastern Seaboard, to boot.

No, I take that back; it is in fact much worse. We used to have some idea of what secrets were compromised.

Blame Bush? Krugman says "No"

From his NYT article on Truthout...

"What we need to realize is that the infamous "Bush bubble," the administration's no-reality zone, extends a long way beyond the White House. Millions of Americans believe that patriotic torturers are keeping us safe, that there's a vast Islamic axis of evil, that victory in Iraq is just around the corner, that Bush appointees are doing a heckuva job - and that news reports contradicting these beliefs reflect liberal media bias."

...

I agree with his conclusion and further wonder if true conservatives will ever have control of the Republican Party again?

-dta

Confessions of a former loyal Bushie

See, Gonz, it's not just us flaming liberals.

Up from Texas came a white-hatted cowboy.

Here came the anti-Clinton. Here came a man who promised to restore integrity to the White House. Here came a man who promised to be a uniter, not a divider. A man who promised to be campassionate, and not just conservative. A man who said we needed to be humble in our foreign policy. A man who, I was convinced, would help clear off the table after the last two years of scandal and filth. A man who would paint the walls white again.

Here came George W. Bush.

I had voted Democratic, twice, for the same man. And that man had lied to me and angered me in a way that I never could have imagined about a politician. I didn't just walk back to the Red folds of the Republican flag, I fucking ran....

*snip*

Does anyone remember--in what seems like a thousand years ago--the spy plane incident over China crisis? This was in early 2001, shortly after the President took office. That was handled so inexpertly that it couldn't have been chalked up to mere this-is-my-first-day-on-the-job-so-I-don't-know-where-the-toner-is inexperience. Bush and his team almost jostled that incident into Cuba in October II: Electric Boogaloo, until Colin Powell got in there and got his hands dirty.

That was the last Bush foreign policy success of any measure, and still it planted a seed of doubt in my mind.

Think about the magnitude of what I just wrote: The last real Bush foreign policy success was in 2001, and even then it made people scratch their chins and wonder, Gee, I don't know.....

The rest of 2001 was pretty much vacation time for Bush, but then we got to August 2001, when Bush made his address to the nation on his stem cell research decision.

I watched that address live with my then-fiancee-now-wife, who was also a Republican. After the President detailed in an almost too-painful-to-watch manner the ham-handed decision that pleased no one and did even less to promote scientific research and asked God to bless the United States and signed off, we cut off the TV and sat in silence. Neither said anything, but our looks spoke volumes. We may have elected an idiot, our eyes said. I think we both got drunk that night....

*snip*

I don't need to catalogue the astonishingly perfect series of missteps, bad decisions, stupid moves, acts of jaw-dropping incredulity that followed over the next three years after September 11. But here are just some of the lilypads, in no particular order, that carried this here frog from one bank of opinion about the President to the other:

No Child Left Behind. 6.2% unemployment. Privitazation of Social Security. Cutting the NIH budget. Appointing Elmer Gantry to the FDA. Removing Whitman from the EPA. Withdrawing support for Kyoto. Clear Skies Initiative. NSA wiretaps. Iraq. Going to war with the army you have, not the army you want. Chalabi. Yellowcake. Iran. Heckuva Job, Brownie. Stay the Course. My Pet Goat.

I could go on and on, but there were many other, graver, more dangerous things that convinced me not only had I made a mistake--a massive, egrgious, horrible mistake--but that the man was more than just a bad president. There were things that convinced me that he cared less about the law than Clinton ever did. There were things he did that made lying about sex under oath seem like littering in the park.

Declaring the Geneva Accords a quaint set of norms that had no application to detainees, only a relative handful of whom had even the slightest connection to al Qaeda, the rest of whom had done nothing wrong. This brought us on par with our internment of the Japanese.
Then there was the extraordinary rendition programs that echoed Stalinist gulags. Abu Ghraib, which bore the strong whiff of the Hanoi Hilton, except we were Ho Chi Minh. The NSA wiretaps that take us out of any good historical analogy and right into the realm of Philip K. Dick....

Bush has gone AWOL?

General Odom thinks so.

"Good morning, this is Lieutenant General William E. Odom, U.S. Army, retired.

"I am not now nor have I ever been a Democrat or a Republican. Thus, I do not speak for the Democratic Party. I speak for myself, as a non-partisan retired military officer who is a former Director of the National Security Agency. I do so because Nancy Pelosi, the Speaker of the House of Representatives, asked me.

"In principle, I do not favor Congressional involvement in the execution of U.S. foreign and military policy. I have seen its perverse effects in many cases. The conflict in Iraq is different. Over the past couple of years, the President has let it proceed on automatic pilot, making no corrections in the face of accumulating evidence that his strategy is failing and cannot be rescued.

"Thus, he lets the United States fly further and further into trouble, squandering its influence, money, and blood, facilitating the gains of our enemies. The Congress is the only mechanism we have to fill this vacuum in command judgment.

"To put this in a simple army metaphor, the Commander-in-Chief seems to have gone AWOL, that is 'absent without leave.' He neither acts nor talks as though he is in charge. Rather, he engages in tit-for-tat games."

Here's some commentary bound to rile Gonzo - but Gonz, please comment on what she says, not on who she is, thanks.

Fascist America, in 10 easy steps

From Hitler to Pinochet and beyond, history shows there are certain steps that any would-be dictator must take to destroy constitutional freedoms. And, argues Naomi Wolf, George Bush and his administration seem to be taking them all

Sam Fox recess-appointed

You know, I really don't think the Founding Fathers meant that a one-week Congressional recess was a valid reason for appointing ambassadors that the Senate had all but rejected...

McGrain v. Daugherty

As the Supreme Court pointed out in 1927:

We are of opinion that the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history-the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action-and both houses have employed the power accordingly up to the present time. . . .

Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate-indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.

Executive privilege

Name that author.

...wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

DBD Hits It

Heh.

Gore called it, five years ago

This man should have been president. At the Commonwealth club in 2002, he gave a speech that clearly articulated the problems with what we were doing, and what the results would be.

I want to talk about the relationship between America's war against terrorism and America's proposed war against Iraq. Like most Americans I've been wrestling with the question of what our country needs to do to defend itself from the kind of focused, intense and evil attack that we suffered a year ago, September 11. We ought to assume that the forces responsible for that attack are even now attempting to plan another attack against us.

I'm speaking today in an effort to recommend a specific course of action for our country, which I sincerely believe would be better for our country than the policy that is now being pursued by President Bush. Specifically, I am deeply concerned that the course of action that we are presently embarking upon with respect to Iraq has the potential to seriously damage our ability to win the war against terrorism and to weaken our ability to lead the world in this new century....

I believe that we are perfectly capable of staying the course in our war against Osama Bin Laden and his terrorist network, while simultaneously taking those steps necessary to build an international coalition to join us in taking on Saddam Hussein in a timely fashion. If you're going after Jesse James, you ought to organize the posse first. Especially if you're in the middle of a gunfight with somebody who's out after you.

I don't think we should allow anything to diminish our focus on the necessity for avenging the 3,000 Americans who were murdered and dismantling the network of terrorists that we know were responsible for it. The fact that we don't know where they are should not cause us to focus instead on some other enemy whose location may be easier to identify. We have other enemies, but we should focus first and foremost as our top priority on winning the war against terrorism....

I believe this proposed foreshortening of deliberation in the Congress robs the country of the time it needs for careful analysis of exactly what may lie before us. Such consideration is all the more important because the administration has failed thus far to lay out an assessment of how it thinks the course of a war will run - even while it has given free run to persons both within and close to the administration to suggest at every opportunity that this will be a pretty easy matter. And it may well be, but the administration has not said much of anything to clarify its idea of what would follow regime change or the degree of engagement that it is prepared to accept for the United States in Iraq in the months and years after a regime change has taken place.

I believe that this is unfortunate, because in the immediate aftermath of September 11, more than a year ago, we had an enormous reservoir of goodwill and sympathy and shared resolve all over the world. That has been squandered in a year's time and replaced with great anxiety all around the world, not primarily about what the terrorist networks are going to do, but about what we're going to do. My point is not that they are right to feel that way, but that they do feel that way. And that has consequences for us. Squandering all that goodwill and replacing it with anxiety in a year's time is similar to what was done by turning a hundred-billion-dollar surplus into a two-hundred-billion-dollar deficit in a year's time....

I just think that if we end the war in Iraq the way we ended the war in Afghanistan, we could very well be worse off than we are today. When you ask the administration about this, what's their intention in the aftermath of a war, Secretary Rumsfeld was asked recently about what our responsibility would be for re-stabilizing Iraq in the aftermath of an invasion, and his answer was, "That's for the Iraqis to come together and decide." On the surface you can understand the logic behind that, and this is not an afterthought. This is based on administration policy. I vividly remember that during one of the campaign debates in 2000, Jim Lehrer asked then-Governor Bush whether or not America, after being involved with military action, should engage in any form of nation building. The answer was, "I don't think so. I think what we need to do is convince people who live in the lands they live in to build the nations. Maybe I'm missing something here. We're going to have kind of a nation-building corps in America? Absolutely not."...

One final word on this proposed doctrine of preemption; this goes far beyond the situation in Iraq. It would affect the basic relationship between the United States and the rest of the world community. Article 51 of the United Nations charter approved here recognizes the right of any nation to defend itself, including the right to take preemptive actions in order to deal with imminent threats. President Bush now asserts that we will take preemptive action even if the threat we perceive is not imminent. If other nations assert that same right, then the rule of law will quickly be replaced by the reign of fear. Any nation that perceives circumstances that could eventually lead to an imminent threat would be justified under this approach in taking military action against another nation. In other words, President Bush is presenting our country with a proposition that contains within itself one of the most fateful decisions in our history; a decision to abandon what we have thought was America's mission in the world - a world in which nations are guided by a common ethic codified in the form of international law, if we want to survive.

Edit: fixed year, link.