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txindy Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:22 PM
Original message
B*sh using a little-noticed strategy to alter the balance of power
Not much of a surprise, but it's nice to see someone in the MSM caught it. From Knight-Ridder:

http://www.realcities.com/mld/krwashington/13568438.htm

WASHINGTON - President Bush agreed with great fanfare last month to accept a ban on torture, but he later quietly reserved the right to ignore it, even as he signed it into law.

Acting from the seclusion of his Texas ranch at the start of New Year's weekend, Bush said he would interpret the new law in keeping with his expansive view of presidential power. He did it by issuing a bill-signing statement - a little-noticed device that has become a favorite tool of presidential power in the Bush White House.

In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues.
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fooj Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:23 PM
Response to Original message
1. He's a crook. I'll say it until my dying day.
Rat bastard has some heavy karma coming his way.
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txindy Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:27 PM
Response to Reply #1
6. I was impressed with the coverage of this in the article
They quoted both sides of the aisle and neither side supported Junior's actions in this. This is new. I'm not used to this!
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GreenPartyVoter Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:25 PM
Response to Original message
2. Don't ya mean "strategery"? ;^D
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txindy Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:33 PM
Response to Reply #2
11. Oops! My bad.
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ThomWV Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:26 PM
Response to Original message
3. Who Does This Fucking Pimp Think He Is?
There isn't anything discretionary about the fucking law. If there is we have no country.
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Ilsa Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:26 PM
Response to Original message
4. Holy crap!
Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues.

What a scary situation.
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txindy Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:29 PM
Response to Reply #4
7. Holy crap, is right. Irony escapes him, too.
In 2003, lawmakers tried to get a handle on Bush's use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.

Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.
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fooj Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:33 PM
Response to Reply #7
12. Little Lord Pissypants thinks he's King!
That's the long and short of it.

peace.
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txindy Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:38 PM
Response to Reply #12
16. "Little Lord Pissypants?!?!"





I may just have to borrow that!
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fooj Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-07-06 04:04 PM
Response to Reply #16
29. Isn't that a fitting title for the wannabe King?
Peace.
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:27 PM
Response to Original message
5. He can try it but it won't hold up in Court.
Previous Presidents have tried the same...the most notorious being Nixon. Congress didn't tolerate it and neither did the courts.

Everyday the man becomes more and more like Nixon.

Doug D.
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Cleita Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:29 PM
Response to Reply #5
8. We have a different Congress now.
We can fight this, if we try.
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:32 PM
Response to Reply #8
9. True but the courts won't tolerate it.
and this is the Congress that passed the anti torture legislation by overwhelming margins in spite of Bush's lobbying. This will anger them as well. It's one more thing like all the recess appointments that angered Republican Senators as well as Democrats. I'd say Bush has very few friends in Congress at this point and many of them are likely on their way out courtesy of the Abramoff scandal.

We've already been able to short circuit many of King George's unconstitutional tricks in court courtesy of the ACLU and other groups. This will be one more trip to court for them.

Doug D.
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txindy Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:35 PM
Response to Reply #9
14. The problem lies in the Supreme Court, should it go that far
I think we'll see Junior's every wish rubber-stamped there by a majority. I hope I'm wrong.
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 11:11 PM
Response to Reply #14
20. I don't know...
His (and previous Republicans) appointing of original intent strict constructionist jurists will probably bite him in the *ss on his rampant power usurping. They already have on several items relating to Guantanamo and treatment of prisoners.

Doug D.
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punpirate Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:36 PM
Response to Reply #5
15. Actually, Reagan was the last president to employ...
... signing statements with a frequency approaching Bush's. And, as I recall, it was Sam Alito who wrote opinions recommending their more-frequent use when he worked for the Reagan administration.

That said, the courts have used signing statements in determining intent, but still depend more on legislative history in determining the intent of the legislation.

Cheers.
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 11:12 PM
Response to Reply #15
21. Of Course.
because CONGRESS writes the laws, not the President. The "signing statement" is basically worthless, just a public relations ploy.

Doug D.
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punpirate Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 11:48 PM
Response to Reply #21
23. Actually it's more than that...
... and as I've mentioned, previous SC opinions have taken signing statements into account (although, again, to a lesser degree than legislative history).

The problem with the signing statement (along with the Executive Order) is that it is meant by the White House to provide some legal justification for the President to act on his own discretion--it's a way for the President to direct Executive Branch agencies to apply the law. Unfortunately, in the Bush White House, the tendency is to see those mechanisms themselves as law, where, in fact, they are interpretations of law and have been used to effectively nullify law. An excellent example would be Bush's Executive Order to implement the Presidential Records Act. That EO effectively nullified the law. To its discredit, Congress did not revisit the PRA in order to prevent that sort of abuse.

Note that in the most recent news on Bush's use of a signing statement--the defense appropriations act which included an amendment against torture--mention was made in that signing statement of the "unitary executive." That's a principle which the Bushies have been pushing as a means of establishing more power for the Executive. For that reason, signing statements ought to be taken much more seriously than being dismissed as PR. They're yet another attempt at establishing the legal basis for a power grab.

Cheers.
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-07-06 02:34 AM
Response to Reply #23
24. It has no legal force. It is just a cover for breaking the law
that is meant to fool the less sophisticated and educated. Many people can't distinguish between the DOJ and the Courts or understand ideas like checks and balances or separation of powers. There is NO such thing as a unitary executive under our Constitutional system of government. That is just a myth being perpetuated on us by a dictatorial President - same as under Nixon.

Impeach the SOB.

Doug D.
Orlando, FL
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punpirate Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-07-06 02:49 AM
Response to Reply #24
25. I don't disagree that the motives are suspect...
... and that this legal philosophy moves the government in a tyrannical direction. But, in the world of Constitutional law, judges' opinions matter. That's the major reason why Alito was nominated for the SC, or at least the additional reason which put him over the top, over other candidates. Alito is in agreement with the principle of the unitary executive--that's likely the major reason why his nomination should be strenuously opposed--his vote can entrench that principle in law.

If you want to dismiss this as a false legal construction, that's fine, but, m'self, I take the potentiality of the threat seriously.

Cheers.
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-07-06 03:53 AM
Response to Reply #25
26. I understand that something can happen in the real world but that does not
Edited on Sat Jan-07-06 04:28 AM by ddeclue
I understand that something can happen in the real world but that does not make it correct.

The court does reverse itself regardless of stare decisis - Dredd Scott for instance or Plessy v. Ferguson. Relying on previous court precedents while ignoring first principles of our system of government is often just a house of cards and it allows people to ignore the obvious facts and basic principles that MUST be applied if a coherent and meaningful system of laws and therefore a meaningful democracy is the desired result.

Often in fact lawyers try to contrive and synthesize the law in ways unintended by those who wrote the law or the Constitution by using previous court precedents as a substitution for the actual written law or the Constitution in order to meet preconceived ideological objectives like allowing torture or allowing warrantless wiretaps or allowing "separate but equal".

This sort of argument is known as sophistry:

According to Merriam Webster's dictionary:

Main Entry: soph·ist·ry
Pronunciation: 'sä-f&-strE
Function: noun
1 : subtly deceptive reasoning or argumentation
2 : SOPHISM 1

Main Entry: soph·ism
Pronunciation: 'sä-"fi-z&m
Function: noun
1 : an argument apparently correct in form but actually invalid; especially : such an argument used to deceive
2 : SOPHISTRY 1

This type of legal argument is the type being made by Attorney General Gonzalez and the rest of the President's hired legal guns on all of these over the line infringements on the rights of Americans and of prisoners held in custody by our government.

What I'm talking about is a rebuttal based on a "first principles" argument that doesn't engage in a lot of legal sophistry to cover up an obviously wrong decision. The following are all "first principles" which everyone understands to be the basis of our government and they are not open to disputation by any reasonable American citizen or government official:

1) We are a gov't of written laws, not men.

2) Our government derives it's power solely from the informed consent of the governed.

3) The Constitution is the supreme law of the land and supercedes both statute and executive orders.

4) The Constitution separates powers of the government into 3 equal but separate branches of gov't that have checks on each others powers.

5) Because the government derives it's power from the consent of the governed, the government possesses LIMITED as opposed to UNLIMITED powers.

6) The limited powers of the government are explicitly enumerated in writing in the Constitution.

7) The President's limited powers are explicitly enumerated in Article II, Section 2 of the Constitution. No powers listed in this section authorize him to disregard any other section of the Constitution.

8) To allow the President to disregard any other section of the Constitution would allow him (or her) to void all the previous principles of our Constitutional gov't which I have just recited.

9) All powers not explicitly enumerated and assigned to the Federal Government in the Constitution are reserved respectively to the People and the States as explicitly stated in the 9th and 10th Amendments of the Constitution and are prohibited to the Federal Government. Therefore the President CAN NOT according to the ACTUAL wording of the Constitution itself possess UNENUMERATED powers to ignore, change, create, or break the law or the Constitution.

10) The Executive Power assigned to the President in Article II Section 1 of the Constitution consists solely of the power to enforce and EXECUTE the laws AS PASSED BY CONGRESS. Hence the title Chief Executive and the name Executive Power. If it were the power to act of independent initiative outside of the scope of law defined by Congress, we would refer to the President as the "Chief Initiator".

When considering the flaw in the argument posed by the President and his "legal" advisors, it is helpful to consider the obvious consequences of saying yes the President is correct in hia claim:

If the President can ignore the Fourth Amendment to the Constitution and the FISA Act in the name of fighting "terror" (which is an abstract idea not a physical entity which can be defeated) or fighting an undeclared and unConstitutional war with no obvious end, then what limits must the President respect?

To me, I would say that any claim of limits would then be arbitrary and the President would be free to do whatever he pleased.

If the President can ignore the 4th Amendment and act in this "unitary executive" manner, then the President can also suspend:

a) Habeas Corpus. Supreme Court said no in Ex Parte Milligan over Lincoln's suspension of it during the Civil War, albeit after the fact.

b) Why not the Posse Comitatus Law?

c) The First Amendment freedom of speech, assembly, press, and religion?

d) The Second Amendment right to keep and bear arms?

e) The Fifth Amendment right against self incrimination?

f) The 22nd Amendment limiting the President to two terms only?

g) The term limits defined for the President, the Congress, or the Senate in the Constitution?

h) The requirement to hold elections for President, the Congress, or the Senate?

i) The right of the Courts to try people or make precedent?

j) The prohibition against cruel and unusual punishment?

k) The right to a trial by jury, the right to a public and speedy trial, the rights against double jeopardy, the definition of treason, the right to counsel?

l) The right of Congress to impeach the President, the Vice President, or cabinet officers.

m) The right of judges to serve lifetime appointments without fear of retribution or removal from the Executive Branch?

Clearly then the "unitary executive" theory is just a fancy $10.00 word for "dictator" or "king". Nixon tried it and the Congress forced him to resign or be impeached.

In fact if it is correct, then why even bother with a Constitution, laws, a Congress, or the Courts for dictatorship is the only possible outcome because neither the Constitution, the written laws, the Congress nor the Courts have any significance nor can have any check on the power of the President.

No President is above the law, and no President should be.

Do you want an American Pinochet or Trujillo or Stalin or Hitler? If you allow this "unitary executive" legal fiction to stand, then that is what you will end up with.

Doug De Clue
Orlando, FL
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punpirate Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-07-06 04:37 AM
Response to Reply #26
27. What I am trying to say...
... and what you seem to be resisting, is that I agree with you in principle, but in practice, that sophistry you describe can be institutionalized. Hitler succeeded, in part, by turning the Weimar Republic upside-down while keeping the appearance of intact legal institutions. That's what the whole "unitary executive" legal movement has attempted to do.

You want to dismiss it as sophistry. I want to focus on the sophistry of it and say it is a dangerous precedent to adopt (especially if adopted through neglect and lack of attention). I think it's far better to avoid a difficulty than to let it happen and then expect the courts to eventually correct the problem by ignoring stare decisis.

Yes, Congress trimmed Nixon's wings with regard to executive excess. To think, though, that that context continues to prevail is naive. It's not the same political milieu today as it was then. Let's consider the obvious. What the Bushies have done already, with regard to overstepping bounds of power, has been far and away more brazen and destructive than Nixon ever contemplated. And yet, Congress--for strictly partisan reasons--has failed utterly to avail itself of the one tool it has within its arsenal to rectify that usurpation of power--impeachment.

Alito's confirmation will, I think, help bring about decisions which will reinforce, rather than repel, the notion that a "unitary executive" is Constitutional, and will cloak that sophistry in the very legal framework on which your argument depends. But, it will still be law, if upheld by the SC.

Bringing attention to the issue is necessary. Attempting to dismiss it as irrelevant ignores the fact that there is a legal battle going on which might well be decided--with the help of jurists such as Alito--in favor of greatly increased power of the Executive, which, in turn, would severely debilitate the Constitutional role of Congress--precisely because the highest courts would be siding with the Executive. That is and has been a prime goal of the Federalist Society for decades. It should not be dismissed as inconceivable and inoperable just because it's seen as sophistic by rational people outside of the legal battle. It can still happen, inconceivable as that may be.

The simple fact is that, now, out of pure partisan desire for power, this Congress will not defend its Constitutional rights and it will not impede the usurpation of power by the Executive Branch. One of the ways it has done that is via its confirmation of jurists who agree with the principle of expanded power of the Executive.

I guess what I'm saying is that while you're arguing the ridiculousness of the legal position which, say, gives currency to the legal validity of signing statements, the courts, with the assistance of Congress, in the meantime, will be putting a judicial stamp of approval on the legal concept--no matter the arguments of Constitutional theorists. In very practical and legal ways, this could become the law, sophistry or no.

Cheers.

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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-07-06 04:46 AM
Response to Reply #27
28. No I wish to challenge it as sophistry and force them to back down.
It is by no means irrelevant, just incorrect and it needs to be disputed publically and forthrightly, not meekly and in obscure places.

I can't do this by granting their "argument" any legitimacy just by virtue of the fact that it is what they are doing and Bush is the President. I must deny it's legitimacy and point out the obvious flaws that make it illegitimate, which I have just done.

Doug D.
Orlando, FL
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Acryliccalico Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:33 PM
Response to Original message
10. What has to happen before we can get our
country BACK? :wtf:
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:34 PM
Response to Reply #10
13. IMPEACH HIM!
http://www.brainshrub.com/us-banana-republic

Last week we heard the shocking news that the President had secretly ordered NSA phone taps without a warrant of any sort of hundreds and possibly even thousands ordinary American citizens making overseas calls over the last 3 years in violation of the Foreign Intelligence Surveillance Act (FISA) and justified it using a secret legal “finding” from the Justice Department.

Previously, President Bush, in clear violation of various extradition treaties with foreign countries, has secretly ordered the illegal kidnapping from certain foreign countries to others of persons he believed to be terrorists and used another secret “finding” from the Justice Department to once again to justify that order.

We’ve seen the President order that an American citizen, Jose Padilla, who was taken into custody not on a foreign battlefield, but rather in Chicago Illinois - be held in a U.S. Navy brig in South Carolina without a trial, a judge, a jury or even access to a lawyer for three years.

Again this action was also justified by a legal "finding” contrived by the Justice Department.

This illegal detention continued until they were faced with the likely embarrassment that a conservative, largely Republican appointed Supreme Court would force them to release Mr. Padilla. At this point they finally announced charges against Mr. Padilla but these charges had nothing to do with the original reasons for detaining him.

We’ve seen the President order that suspected terrorists captured on battlefields abroad be held in a multitude of secret prisons including at Guantanamo Bay, Cuba ; Abu Gharab, Iraq; in Eastern Europe; and elsewhere without access to an International Red Cross representative and without a proper accounting of who those prisoners are to the IRC.

Those prisoners have been repeatedly subjected to abuse and even torture and a number of prisoners have even died as a result of their treatment.

More legal “findings” from the Justice Department were used to justify these actions that are in clear violation of the Constitution’s prohibition that “no person may be subjected to cruel and unusual punishment” and that are in violation of other Federal statutes and international treaty obligations.

We’ve even seen the President and Vice President lobbying to stop Congress from passing anti-torture legislation until last week when they were faced with the embarrassing prospect of Congress overriding a Presidential veto.

We’ve seen the President lie to both the Congress and the American People about the reasons for starting a war, and then attempt to silence his critics through Nixonian tactics such as the illegal outing of the identity of CIA agent Valerie Plame.

We’ve seen the Administration use our government to fund and distribute covert propaganda both here and abroad.

We’ve seen the Administration use our government to illegally collect information on air travelers without a warrant where no probable cause existed to justify these illegal database searches.

We’ve seen the Administration attempt to create Orwellian government propaganda offices such as the Office of Strategic Influence and Orwellian government research programs such as “Cities that See” in an attempt to use computers and cameras to track the movements of everyday ordinary citizens as they walk down city streets.

Never has any American President committed so many illegal, immoral and unconstitutional acts. Never.

Even Richard Nixon at some level understood that wiretaps without a court order were illegal, unconstitutional and wrong. The Watergate “plumbers” after all were burglars, not government agents acting behind the shield of official protection.

President Bush acts as though the Constitution were a hindrance, a burden, and an obstacle to be worked around rather than understanding that it is his primary duty to preserve, protect, defend and obey the Constitution.

He uses often-secret legal findings by his Justice Department to give the appearance of propriety while denying the third branch of government, the Federal Court system, any say in the matter. He never gets these Justice Department findings approved by the Congress, the Courts, or the people.

These fiat findings and executive orders are but one step removed from “because the King said so” and circumvent the very checks and balances the Founders intended for our protection.

The President swore an oath before God and the American People “to the best of his Ability, preserve, protect and defend the Constitution of the United States.”

The President is fond of telling us that his number one priority is the protection of the American people and he repeated this claim yet again recently to a PBS reporter.

His oath of office however makes no mention of protecting the American people, nor does the Constitution charge him with that responsibility.

This, at first, may seem odd but the Founding Fathers understood well that tyrants often justified their actions on the basis that they were acting in the best interest of protecting the people.

They did not fight a revolution to remove themselves from the clutches of one king only to appoint a different king to take his place. They wanted a democratic government. They wanted an open government where effective checks and balances protected both the rights of the majority and the rights of the individual against those would be tyrants.

Protecting the American people is no excuse for destroying the American Constitution.

Secrecy is anathema to democracy for it denies “We the People” our fundamental right to an accountable government and our fundamental right to make an informed decision at the ballot box.

The President has repeatedly used secrecy to hide his illegal actions from the view of the Congress, the Courts, and most importantly the American people.

That the New York Times was aware of the fact that the President was illegally spying on American citizens without a court order - and chose to withhold that fact from the American public for over a year makes them an accomplice to that crime.

For the New York Times to withhold this information during an election year is in fact an unforgivable sin against the American People.

It is the duty of the press, above all else, to bring such abuses of power to the light of day.

That the President expects us to trust him for an extended period with the expanded and Constitutionally questionable powers that were granted to him under the PATRIOT Act after they expire in December would be laughable were it not so dangerous.

Today is hardly the first “trying time” that Americans have ever known. We should not allow the President to frighten us into giving up our American birthright – the Constitution - and into replacing a free government of laws by a mere dictatorship of men.

That the President has gotten away with so many impeachable offenses for so long is baffling and deeply disturbing. The United States Congress and the Senate investigated Richard Nixon and prepared Articles of Impeachment against him for far less serious offenses.

It is long since time for them to impeach President Bush.



Doug D.
Orlando, FL
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woodsprite Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:53 PM
Response to Reply #13
18. I've been thinking about Padilla ...
Now, maybe my tinfoil is rusty tonight OR I maybe it's on too tight, but I was wondering if they're "punishing" him because they wanted him to do something for them and he didn't come thru. Or he did, and he threatened to squeal. * is acting vengeful instead of "homeland-security conscious". That thought just struck me like a ton of bricks. Could he have done some dirty work for them and they had to squirrel him away someplace?

OK, I'll go get some new tinfoil to make a new hat out of now.... :tinfoilhat:
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ddeclue Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 11:09 PM
Response to Reply #18
19. No I just think they had some gossip on him that wasn't prosecutable
without giving up the fact that they had illegally searched or wiretapped him or someone else and wanted to find a way to short circuit the Constitution and just hold him incognito for as long as they could get away with it. They of course pulled out the scariest sounding accusation they could find "dirty bomb" and throw that at him to muddy him up and scare the public into saying: OK you can deprive arbitrary American citizens of their fundamental rights.

This initially worked but conscientious people fought back like the ACLU and have now gotten them backed into a corner so they finally charged him with crimes in regular Federal court and surprise surprise, none of them were for "dirty bombs". The Appeals Court that heard the last arguments over his illegal detention in a Navy brig was livid. I suspect that the Supreme Court will have some cross words for the Bush administration, although they have ordered Padilla transferred to a regular Federal prison, not a Navy brig pending his trial.

Doug D.
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mitchtv Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 10:51 PM
Response to Original message
17. Bernie Ward on KGO has been bringing this
foward at night. Pity he is not heard nationwide
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shraby Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jan-06-06 11:13 PM
Response to Original message
22. Olbermann covered this tonight...bless his heart.
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