Charles Carreon, The Arizona Kid

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OKAY, WE'LL JUST SAY HE GOT WHAT WAS COMING TO HIM
by Charles Carreon
November 2, 2005

Dick Cheney's new hit man, Mr. Addington, has not just taken Libby's place, he has jumped into his work with a will. Moving to the hot policy debates, like the need to preserve "the option" for American soldiers to engage in cruel, humiliating and degrading treatment, Addington decided to demonstrate why such techniques can be useful.

Tim Golden and Eric Schmitt for The New York Times wrote:

A central player in the fight over the directive is David S. Addington, who was the vice president's counsel until he was named on Monday to succeed I. Lewis Libby Jr. as Mr. Cheney's chief of staff. According to several officials, Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions.

"He left bruised and bloody," one Defense Department official said of the Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld's chief adviser on detainee issues. "He tried to champion Article 3, and Addington just ate him for lunch."

After taking the gloves off to rough up Mr. Waxman, Addington let his lackeys clean up the interrogation room:

NYT wrote:

A spokesman for the vice president, Stephen E. Schmidt, said Mr. Addington would have no comment on his reported role in the policy debates. A Defense Department spokesman, Bryan Whitman, also would not discuss Mr. Waxman's role except to say it was "certainly an exaggeration" to characterize him as having been bloodied by Mr. Addington.

And, we might add, it was obvious hyperbole to suggest that Mr. Addington would engage in cannibalism. Such revelries are no doubt reserved for high holy days in the Bohemian Grove.

But let's keep things in perspective. Sure Addington took off the gloves. He got a little rough, but look at the people he has to deal with. Towelhead sympathizers in the Defense Department who go soft on you right when we've got the terrorists on the ropes. This is no time to give up on a program that is working. The guy got what was coming to him.

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Bull Troglodytes
8:21pm, November 6, 2005

It seems my intuition about Addington, based on the above description of his behavior, was true. Newsweek has just written a piece called Cheney In The Bunker that provides a more complete view of the Addington-Cheney track record on this torture stuff. It all adds up. They really believe in violence as a way of prevailing in every aspect of life. I do believe they are from that very special breed: Bull Troglodytes.

Newsweek wrote:

In his time of need, he has counted on the help of at least one unswervingly faithful aide. With Libby sidelined, the vice president has elevated David Addington, a loyal acolyte, to be his new chief of staff. Addington has been at the vice president's side since the 1980s, when Cheney was a congressman and Addington a lawyer for the House intelligence committee. When Cheney became secretary of Defense during the first Bush presidency, Addington went with him. A skilled bureaucratic infighter who uses his temper strategically to stun foes into submission, Addington, now 48, has matured into a classic Washington type: the most powerful man you've never heard of. As Cheney's counsel, Addington—a private workaholic who, unlike Libby, shuns reporters—was one of the most forceful voices for tough treatment of terror suspects. It was Addington who drafted the January 2002 Alberto Gonzales memo which argued that captured Taliban and Qaeda fighters shouldn't be covered by the Geneva Conventions. He was behind the presidential order establishing military tribunals. And he passionately argued that in wartime the president has almost unlimited power—a point of view that was spelled out in the "torture memo" that the administration was eventually forced to rescind under public pressure.

Now those policies have become a burden for the White House. When Bush began his second term in 2004, a group of top administration officials, led by Secretary of State Condoleezza Rice, began a quiet campaign to back off some controversial detention and interrogation methods that were damaging U.S. credibility around the world. At White House meetings, Rice openly worried that in the aftermath of Abu Ghraib "these policies threatened to be the president's legacy," says an administration official who was present but asked for anonymity about the private sessions. Among the proposals seriously considered inside the bureaucracy: shutting down the prison at Guan-tanamo Bay, allowing U.N. inspectors to tour Gitmo and pledging to follow Article III of the Geneva Conventions, which bars "cruel, degrading and inhumane" treatment of prisoners. Among Rice's supporters were two staunch defenders of the war on terror: national-security adviser Stephen Hadley, and Gordon England, Donald Rumsfeld's new deputy—an important shift that suggested Rumsfeld had qualms of his own.

Staffers were dispatched to write up the new policies. But in the end, nothing came of them. Cheney and Addington, who usually stayed silent at meetings, used their influence afterward to kill the ideas, according to three administration officials who asked for anonymity to avoid crossing the vice president. "Each time, [we] hit a brick wall—the vice president's office and Addington," says one of the officials. The vice president's office declined to comment for this story beyond saying that Cheney "is motivated first and foremost in support of policies that will save American lives from a brutal enemy that has declared war on us."

Cheney relied on Addington to help him wrestle with the bureaucracy. "He knows it inside and out," says Juleanna Glover Weiss, Cheney's former press secretary. "He's a master of the Rube Goldberg-esque workings of the executive branch." Friends marvel at his ability to wade through hundreds of pages of turgid government reports to seize upon the one fact he needs to win an argument. "If you threw the entire U.S. budget into the air, David Addington could read it and mark it up before it ever hit the ground," says David Gribbin, a former Pentagon colleague. He could also be unforgiving. When a young Justice Department lawyer named Pat Philbin crossed Addington in a policy dispute, Addington made it his mission to block Philbin's promotion to a top Justice job. Addington let it be known that Philbin was a "marked man," says a colleague who spoke anonymously to avoid clashing with Addington. (Addington and Philbin declined to comment.)

Cheney and Addington's single-minded devotion to the idea of a powerful wartime presidency has, at times, led them to ignore important political realities. In 2002, administration lawyers tried to persuade Cheney and Addington to back off from the policy of denying U.S. "enemy combatants" access to legal counsel. But Cheney and Addington refused. But by 2004, the case had reached the Supreme Court and the administration wound up abandoning the position anyway, before the Justices could knock it down as unconstitutional. "David could be principled to a fault," says Bradford Berenson, a former White House colleague. It's a quality the vice president and his loyal aide admire most about one another—and one that will help define the battles to come.

© 2005 Newsweek, Inc.

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YES, KARL IS HERE; NO, I CAN'T TALK ABOUT HIM, by Charles Carreon

1:22am, November 2, 2005

The day Libby was indicted, Scott McClellan gave a press briefing, and he was asked about Karl Rove's status at the White House. McClellan first played dumb, then, when asked whether Rove still had a job in the White House, he refused to confirm Rove's continued employment, referring the reporters to Rove's lawyers. Now if I were Karl, I would think about working on my resume, because when people won't confirm your employment, it's like, maybe they're thinking about firing you.

WhiteyHouse.gov wrote:

Q. Is Mr. Rove's status the same? I mean, the reports say that he remains under investigation. He was not indicted today. Is there anything —

MR. McCLELLAN: Anything — go ahead.

Q. Any change in his status? Has he talked to the President about the continuing investigation?

MR. McCLELLAN: Are you talking about change in his legal status? Is that what you're — I mean, it's —

Q. Does he still — he still works here, correct?

MR. McCLELLAN: That would be a Q.uestion to direct to his personal attorney.

Q. No, but he still works here, right?

MR. McCLELLAN: I saw his personal attorney put out a statement earlier today. But, yes, he has been here doing his work.

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HEY HON, ABOUT THAT ABORTION I WANTED TO HAVE ..., by Charles Carreon

3:35am, November 2, 2005

Bush needed a distraction from the impending indictment of Karl Rove, so let's make a sideshow out of the Supreme Court appointments. Good-bye Harriet Miers, hello Sammy Alito. Who is this guy Alito? One scary dude. He thinks it's Constitutional to require a woman to ask her husband for permission to get an abortion unless she could satisfy some very restrictive requirements to qualify for an exemption. Law professor Richard Schragger paraphrases the law Sammy thought Pennsylvania women should be forced to live with:

Richard Schragger wrote:

[The law] required a married woman to notify her spouse if she was planning to have an abortion unless she swore that her spouse was not the father of the child, her husband could not be located after diligent effort, the pregnancy was a result of a sexual assault that had been reported to the authorities, or she had reason to believe that notification would likely result in infliction of bodily injury.

Judge Alito's belief that woman can lawfully be so subordinated to the will of someone that they signed a contract of marriage with is consistent with his belief that contracts should be given great deference. The Wall Street Journal noted on November 1, 2005:

In 15 years on the federal bench, Judge Samuel Alito often has sided with positions backed by business leaders — and shown himself a strict interpreter of contracts — in cases ranging from employment discrimination and commercial speech to shareholder suits. ... One of the best-known is a 1997 dissent in which Judge Alito argued against a racial-discrimination claim made by a black housekeeping manager who was denied promotion to a job at a Marriott International Inc. hotel. The position, at a hotel in Park Ridge, N.J., went to a white woman. While the court ruled the woman could take the case to a jury, Judge Alito argued that, although she might be able to claim she had been treated unfairly, that wasn't enough to let her sue. "What we end up doing then is...allowing disgruntled employees to impose the cost of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly," he wrote. "This represents an unwarranted extension of the anti-discrimination laws." ... Last year, Judge Alito wrote an opinion striking down a Pennsylvania law that barred alcoholic-beverage advertising in college newspapers. The law violated advertisers' First Amendment rights, he found, while doing little to prevent underage drinkers from seeing liquor ads, since they were prevalent in many other media to which students had access. ... And in 1997, Judge Alito affirmed the dismissal of a shareholder class action filed against Burlington Coat Factory Warehouse Corp., of Burlington, N.J., after its earnings fell far short of its projections and its stock fell 30% in one day. He ruled that shareholder plaintiffs had failed to specify how the company's performance amounted to fraud, in a close reading of applicable statutes. Judge Alito has insisted on enforcement of contract terms challenged as unfair or otherwise as void, such as provisions that require consumers to use arbitration rather than lawsuits to pursue complaints, said Larry E. Ribstein, a law professor at the University of Illinois

The problem of course with enforcing contracts formed between one powerful party (an employer or husband) and a weak party (an employee or wife) are that these contracts aren't fully voluntary or clearly negotiated. Indeed, where in the marriage contract does it say that a woman must ask permission before choosing to conceive or not conceive? Alito must think that this is an implied contractual term. One could question what implied rights a woman has to dictate a man's bodily functions? Does he need permission to get a vasectomy? To take Viagra? To read pornography? To have gay sex? How should we punish men who break these rules? Alito's jurisprudence is twisted, and we don't need more twisted brethren on the Court.

Richard Schragger wrote:

Alito's unequivocal abortion decisions. Nov. 1, 2005, at 4:08 PM ET

Supporters of Judge Samuel Alito are out in full force today, arguing that he is conservative but not extreme; principled but not overzealous. The example being widely touted: He may have voted against a broad right to abortion in one case, but he struck down an abortion regulation in another. In one article after another it is suggested that Alito has taken a middle-of-the-road position in abortion cases. Now, let's be very clear: Judge Alito might be ambivalent about many things, but he is not ambivalent about abortion. Seeking to cloud this issue by pointing out that Alito authored opinions on both sides of the issue is nonsense. Nothing could be further from the truth.

In 1991, Alito was very clear. In Planned Parenthood v. Casey—the very case the Supreme Court later used to affirm Roe v. Wade—Alito joined the majority in holding that it is not an undue burden on a woman's right to choose to require women to wait 24 hours for an abortion, to require minors to obtain parental consent, or to require that abortion providers give women information about alternatives to abortion and comply with certain disclosure and public-reporting requirements. But Alito went even further than the majority in that case. Though he joined the other two judges in upholding most of Pennsylvania's law, he disagreed with them that the spousal notification portion of the statute was unconstitutional. Alito would have upheld the entire statute, including the spousal notification provision, on the grounds that it did not constitute an undue burden. It was this part of the statute the Supreme Court struck down in Casey.

Nine years later, in 2000, in Planned Parenthood v. Farmer, Alito faced a Pennsylvania statute banning the so-called partial-birth abortion procedure. But this time he did not get a chance to rule. The Supreme Court had granted review on an almost identical Nebraska statute, and the 3rd Circuit postponed handing down its own decision until it could hear from the Supreme Court. Alas, the Supreme Court struck down the Nebraska statute in Stenberg v. Carhart. Therefore the Pennsylvania statute had to fall as well. Alito had no choice: To do otherwise would have been to ignore a direct command of the Supreme Court.

What is interesting, however, is that Alito did not join the majority opinion in Farmer. He wrote separately. Why? Here's a very good guess: The majority opinion in Farmer had been drafted before the Supreme Court had issued its decision in Carhart; indeed, Judge Maryanne Trump Barry, who wrote it, expressly noted as much. Instead of rewriting the draft opinion, Barry simply tacked on the Carhart precedent to the beginning of her existing decision, observing that her opinion was essentially in agreement with the Supreme Court's. Had Alito originally agreed with Barry, it is a good guess he would have gone along with this shortcut, since the outcome was exactly the same. But I suspect that he didn't agree with the majority and certainly did not want some reasoning lurking out there that might have been even marginally broader than the Supreme Court's. So, Alito went out of his way to distance himself from Barry's opinion, which, he observed in concurrence, "was never necessary and is now obsolete."

Alito's snub of the Barry majority opinion echoes his logic in Casey, in which he rejected the majority's application of the undue burden test to Pennsylvania's spousal notification provision. That provision required a married woman to notify her spouse if she was planning to have an abortion unless she swore that her spouse was not the father of the child, her husband could not be located after diligent effort, the pregnancy was a result of a sexual assault that had been reported to the authorities, or she had reason to believe that notification would likely result in infliction of bodily injury.

The 3rd Circuit majority in Casey accepted expert testimony that this provision—even with its exceptions—would impose an undue burden on a woman's right to choose to undergo an abortion. The majority observed that most married women would voluntarily tell their husbands of their plans, but that in circumstances where they would not, requiring notification could result in spousal coercion. The exception for bodily harm, reasoned the majority, did not take into account the myriad forms of psychological coercion a husband could apply to a wife, including withdrawal of financial support or threats to dissolve the marriage. Moreover, the exception for spousal sexual abuse required that women report their abuser to the police, an action experts testified was likely to lead to further abuse and one a battered woman was unlikely to take. The majority of the Casey judges, taking account of the "real world consequences of forced notification," concluded that "because of the nature of the marriage relationship and the emotional character of the human response to pregnancy and abortion, the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless."

But Alito rejected this "real world" approach, arguing that the plaintiffs had not sustained their burden of proving that the spousal notification provision would result in spousal coercion. Alito's interpretation of "undue burden" is noticeably crabbed: It is not enough, he argued, to show "that a law will have a heavy impact on a few women." Rather, those challenging the law must prove a "broader inhibiting effect." Alito thus demanded that the plaintiffs provide the court with a rough number of how many women would be inhibited from obtaining an abortion by the requirement of spousal notice. The majority's common-sense reasoning was not enough; the "undue burden" test required the plaintiffs to provide actual evidence that coerced spousal notification would inhibit some actual number of women's decision-making.

Of course, that kind of evidence is almost impossible to obtain. How would one begin to figure out just how many women would have sought an abortion but did not because they were required to notify their spouse? The plaintiffs provided expert evidence that women are often coerced physically and emotionally by abusive husbands; that the abortion decision presents them with a terrifying choice in those circumstances; and that required notification adds to the burden of an already difficult decision by holding out the threat of spousal reprisal. For Alito, this was not enough, and so he dissented.

That Alito was on the wrong side of the 3rd Circuit majority and the Supreme Court should be enough for those who are full-throated supporters of a woman's right to choose. But this fact is also important for anyone who finds themselves in the middle on this issue: Note that the judges who joined the 3rd Circuit opinion in Casey—Judges Walter Stapleton and Collins Seitz—were not radical, bra-burning feminists of any sort. Stapleton—who wrote Casey—was appointed by Ronald Reagan, and Seitz was a Johnson appointee; one can only characterize their jurisprudence as emphatically moderate and mainstream. And remember that the swing justices who upheld Casey and reaffirmed Roe—Anthony Kennedy and Sandra Day O'Connor—were also appointed by Republicans and are also moderate and well within the mainstream of judicial attitudes.

If Alito replaces O'Connor, both of his crucial abortion opinions in the 3rd Circuit indicate that he will not take her centrist path. But this time, there will be no moderate Supreme Court above him to put on the brakes.

Richard Schragger is an associate professor at the University of Virginia Law School.

Article URL: http://www.slate.com/id/2129230/

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ALITO AT THE STAKE: BURN, BABY, BURN!, by Charles Carreon

11:26am, November 2, 2005

I love it when the opposition starts crying "Foul!" You know you're scoring real hits when Publicans start whining about being "blindsided," "affronted" and other wimp-words. What they're saying is "Those are our tactics, you bastards!" Which is a compliment, if properly interpreted.

Sun Tzu said "Don't fight an army that has its back to the fire or is going home. Under either of these circumstances, even untrained peasants will fight to the death." Well, the Dems have played at war like peasants looking to go home ever since the towers were razed, their occupants incinerated, and the entire event exploited for PR value.

The Cheney-Bush Junta has decided to go with its strengths — bravado and bullshit slinging. Don't believe the spin that says Dick's lost his grip — he's deep in and machinating like a son-of-a-gun. That's why they picked Alito to crash into the scene like a garbage truck paying a society call at 5 a.m. Figured they'd take the heat off Karl and Scooter by kicking up a big brouhaha about the Court. They'd rather have the opportunity to rally the faithful around the right-to-life flag, because they figure they can pull off a "bruising confirmation battle" more smoothly than the Dems.

But I do believe they've backed the Dems up against several fires that jointly make a well-nigh impassable inferno. The first fire is the Iraq war death toll. The second fire is the blatant cronyism that was revealed by the Katrina-FEMA-clusterfuck in New Orleans. (Yes, we use that word in Oregon as a term of art.) The third fire, fueling the second, that seemed like it might blow itself out like a hurricane, received new life from the Fitzgerald indictment. That fire is the revelation that the Cheney-Bush Junta is staffed with real criminals like Libby, DeLay, Abramoff, and Bill Frist. The fourth fire is the condition of the economy, in which most Americans are earning wages that force them to lean on credit every month to make ends meet. These fires are at the Democrats' backs because they have got to avoid the blame that is going to be heaped on the architects of this disaster we call our national domestic and foreign policy. Hard times on Main Street are coming, and the rank and file are about tapped out.

Reid has chosen the right moment to launch a surprise attack, and if going into closed session doesn't communicate the likelihood of a filibuster to block Alito's confirmation, then the Publicans should stick a wet finger in the wind, because they wouldn't want to be caught pissing against it.

My favorite strategy at this point in the game is simply to OPPOSE EVERYTHING THE OTHER GUY WANTS. With the Publicans, you must assume that if they want something, it will be bad for the good people, and good for the criminals in power. We have huge issues to deal with. We can save the lives of American soldiers and Iraqi citizens. We can put a halt to the looting of the US Treasury. Because the Publicans still have the momentum of being in control of the House and Senate and the New York Times-Fox News- Time-Life Spin Machine, it is all about breaking their momentum and showing them unable to move.

The people will not blame the Democrats for "gridlock in Congress," so long as we educate them in the idea that we must STOP THE BAD THINGS FROM HAPPENING. It's like hunting down a criminal. First you stop him doing bad things. Then you turn to healing the harm he caused.

In order to do more than fight our way out of the immediate danger of getting a packed Supreme Court with a hard fascist wing (count 'em — Thomas, Scalia, Roberts, and Alito), we need a long term strategy. In our case, it's obvious — go for a complete rout in the midterm elections. Harry Reid needs to get the wood piled high around Alito's feet, tie him to the stake and Burn, Baby, Burn!

http://rapeutation.com/whitetrainshowdownantonio.mp3

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"Deeply Held Beliefs" Are Nothing to a Judge

9:23pm, December 3, 2005

Okay, Anti-Alito forces, remember my number one rule: "When they're runnin', pop a cap in their ass!" Unload on this piece of crap! Blow up the outhouse he's hiding out in, and drag him butt nekked thru the fields. Call him a liar first thing in the morning, a liar at noon, and a liar again at midnight. Repeat until done.

WAPO wrote:

Alito Distances Himself From 1985 Memos Senator Says Nominee Drew a Line Between Expressed Views and Potential Rulings

By Charles Babington Washington Post Staff Writer Saturday, December 3, 2005; Page A01

Supreme Court nominee Samuel A. Alito Jr. yesterday tried to tamp down criticisms of several past statements — including his assertion that the Constitution does not protect the right to abortion — by saying they were personal views or an advocate's work and not necessarily indications of how he might rule if confirmed, according to a key senator who quizzed him for more than an hour.

Alito's effort to distance himself from the recently disclosed 1985 documents came as liberal groups said the writings show him to be much more conservative than the newly confirmed chief justice, John G. Roberts Jr. Alito's explanation was meant to lessen the documents' impact, but it may expose him to accusations of insincerity or irresolution, advocates said. Document

In this May 30, 1985, memorandum, U.S. Supreme Court nominee Samuel A. Alito, Jr., then a Justice Department lawyer in the Reagan administration, outlined his strategy for attacking the landmark 1973 Roe v. Wade abortion ruling:

President Bush nominated Judge Samuel A. Alito Jr. to the Supreme Court on Oct. 31, 2005. If confirmed, Alito will fill the seat currently held by retiring Justice Sandra Day O'Connor.

Left-leaning groups, and at least one prominent conservative, said it is ludicrous for Alito to play down the significance of memos he wrote as a Justice Department lawyer in the Reagan administration in which he said he was "particularly proud" of fighting affirmative action programs and was looking forward to the day the Roe v. Wade abortion ruling is overturned.

Alarmed that commentary on Alito, from the political left and right, was getting increasingly negative, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) asked the nominee this week to answer several questions in writing. The White House asked Specter to meet with Alito, instead, and then relay his comments, which the senator did in a news conference at the Capitol.

At issue are two memos that Alito, 55, wrote in 1985. In the first, a bid for a promotion, Alito wrote that he was "particularly proud" of contributing to cases arguing "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." He was pleased, he wrote, "to help to advance legal positions in which I personally believe very strongly."

In the second memo, he outlined a strategy for attacking the landmark 1973 court ruling that legalized abortion nationwide. "What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?" he wrote, after volunteering to help in the matter.

Specter, referring to notes as he briefed reporters, said Alito discussed both memos "and raised a sharp distinction, as he put it, between his role as an advocate and his role as a judge." Especially concerning the second memo, Specter said, Alito "said he was writing it as an advocate; that his role as a judge would be different."

As for the earlier memo, the senator said, "I asked him about the line here, 'The Constitution does not protect a right to an abortion.' And he identifies that as a personal opinion . . . and he said that his personal opinion would not be a factor in his judicial decision."

Asked whether Alito's explanations satisfied him, Specter said, "I'm here to report on his answers. . . . I am not satisfied; I am not dissatisfied."

Specter, who supports abortion rights, said Alito appeared sympathetic to the argument that Roe should be treated with great respect because it has been the law for 32 years. "Judge Alito says that when a matter is embedded in the culture, it's a considerable factor in the application of stare decisis ," Latin for "to stand by that which is decided," Specter said. Asked for details, Specter said: "I'm not going to interpret his words. I think those words are very meaningful as to jurisprudence and as to weight." He added: "I did not ask him whether he would push to overturn Roe v. Wade. "

Several liberal groups said it was absurd for Alito, a federal appeals court judge, to try to distance himself from the memos because he clearly described his views as deeply held. Judith C. Appelbaum of the National Women's Law Center said Alito applied his sentiments about abortion rights in 1991, when he ruled in a major case — Casey v. Planned Parenthood — that a married woman must inform her husband before having an abortion. The Supreme Court in 1992 overturned that provision of a law.

Conservative lawyer Bruce Fein, who was a Justice Department official in the Reagan administration, said he is baffled that Alito is pulling back from his well-argued 1985 memos. "I think the administration is misreading the Senate and the public, because you end up losing more if your credibility is strained and people think you're playing them for dupes," Fein said.

But Janet M. LaRue of the conservative group Concerned Women for America said she is not bothered that Alito is putting space between himself and his 20-year-old memos. "I would have been surprised if he had said anything else," she said. All her group wants, she said, is a judge "to make an objective ruling based on the law and the facts. It's a joke for the left to pretend that none of their favorite judges have deeply held beliefs."

Several conservative groups, meanwhile, plan a major push beginning Monday to portray Alito's opponents as anti-God. Talking points for the effort, which will involve ads and grass-roots organizations, were laid out in a strategy memo by Grassfire.org, which opposes abortion and same-sex marriage. Alito's opponents are united by "an agenda to purge any and all references to religion from our public life," the memo says.

The coalition, which includes the Judicial Confirmation Network, plans to send 2.3 million e-mails on the subject and hopes to "flood Senate offices with letters, faxes and phone calls." It will be joined in the effort by Fidelis, a Roman Catholic organization that describes itself as "pro-life, pro-family and pro-religious liberty."

Staff writer Jo Becker contributed to this report.

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SECRET CIA TORTURE CELLS ARE ON THE HONOR SYSTEM, by Charles Carreon

1:10am, November 5, 2005

Stephen Hadley, National Security Advisor, tried to turn his Press Briefing on Bush's trip to Argentina into a simple travelogue, but some reporter insisted on talking about Dick Cheney's idee fixee, the need to preserve secret CIA torture sells free from the restraints of the Geneva Convention and US laws that make torture a crime. Hadley, a lawyer, took the bait, and disclosed a lovely circular rationale that argues that people will behave virtuously if you allow them to act in secret. Certainly then Dick Cheney and Ken Lay were morally uplifted when they secretly joined to fashion a national energy policy in secret. It's nice when a guy like Hadley can put a high polish on a turd. Shows his education didn't go to waste.

WhiteHouse.gov wrote:

Q. Can I ask you a quick one on another subject? Why does the administration feel it's necessary to maintain a network of secret detention centers around the world, out of sight of the Congress and the American people, and out of reach of American law and values?

MR. HADLEY: There have been some press reports this morning that have touched on that subject. And as you can appreciate, they raise some issues about possible intelligence operations. And as you know, we don't talk about intelligence operations from this podium.

Q. Don't they also raise issue of our values and our reputation in the world?

MR. HADLEY: Right, and I think the President has been pretty clear on that, that while we have to do what we — do what is necessary to defend the country against terrorists attacks and to win the war on terror, the President has been very clear that we're going to do that in a way that is consistent with our values. And that is why he's been very clear that the United States will not torture. The United States will conduct its activities in compliance with law and international obligations.

And in some of the issues involving detainees and the like, as you know, where there have been allegations that people have not met the standard the President has set, there have been investigations, and they have been of two forms. There are over a dozen investigations that have been done in the Department of Defense to find out what has been going on. Two things have happened as a result. There have been revisions of procedures and practices to ensure that the standard the President set is met; and then there have been investigations, prosecutions, and people punished for the failure to meet those standards. So we think that, consistent with the President's guidance, we are both protecting the country against the terrorists and doing it in a way that is consistent with our values and principles.

Q. If I could just press you on that, how do those self-correcting mechanisms that affirm our values and our laws, how do they work if the sites are secret to begin with?

MR. HADLEY: Well, the fact that they are secret, assuming there are such sites, does not mean that simply because something is — and some people say that the test of your principles are what you do when no one is looking. And the President has insisted that whether it is in the public, or is in the private, the same principles will apply, and the same principles will be respected. And to the extent people do not meet up, measure up to those principles, there will be accountability and responsibility.

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Sen. Lott Wants End to Leaking -- Try Attends!

12:00pm, November 10, 2005

The Fools on the Hill are shrieking because someone caught them keeping secrets about the secret jails. First they fire up a torchlight parade to "get the leakers!" Since the CIA jail news is "bad for Republicans," they figured that if they could accuse a Democrat of leaking the information, it might help them to Reverse-Spin Rovegate back at their partisan opponents. But then it turns out that the Washington Post story just tracks the information that Cheney and a bunch of Republican Senators had gotten the day before. So that's it boys, douse those torches, false alarm, just our guys doin' their thing.

I don't know, though, I think Trent Lott is onto something. They've got to stop the leaks. There are trails of stinking shit up and down the halls of Congress, in the Office of the Vice President, and all over the West Wing, most of them heading straight into the Oval Office. Maybe it just has to do with age. Sphincter muscles weaken after a lifetime of clenching. A lotta folks just use Attends.

Raw Story at mediachannel.org wrote:

Senator Tells CNN He Believes Republican Leaked Info on CIA Jails

Submitted by editor4 on November 9, 2005 - 2:55pm. Source: Raw Story

Senator Trent Lott (R-MS) told CNN's Ed Henry Tuesday afternoon that he believed it was a Republican senator who gave information about secret CIA jails abroad to the Washington Post, RAW STORY can report.

Lott said that much of the information contained in the Post report — which stated that the U.S. was holding terrorist suspects in secret CIA jails overseas — was discussed at a meeting of Republican senators last Tuesday.

The revelation appears to torpedo the political gambit of Senate Majority Leader Bill Frist (R-TN) and House Speaker J. Dennis Hastert (R-IL) who called on the Senate and House intelligence committees to investigate who leaked the information to the Post.

The Post story cited as sources "U.S. and foreign officials familiar with the arrangement."

CNN's Ed Henry: "Trent Lott stunned reporters by declaring that this subject was actualy discussed at a Senate Republican luncheon, Republican senators only, last tuesday the day before the story ran in the Washington Post. Lott noted that Vice President Cheney was also in the room for that discussion and Lott said point blank "a lot of it came out of that room last tuesday, pointing to the room where the lunch was held in the capitol." He added of senators "we can't keep our mouths shut." He added about the vice president, "He was up here last wek and talked up here in that room right there in a roomful of nothing but senators and every word that was said in there went right to the newspaper." He said he believes when all is said and done it may wind up as an ethics investigation of a Republican senator, maybe a Republican staffer as well. Senator Frist's office not commenting on this development. The Washington Post not commenting either."

[admin]

BUSH BUFFETED BY ROVE TURBULENCE IN BUENOS AIRES, by Charles Carreon

1:40am, November 5, 2005

I saw all the videos of demonstrators assailing the leader of the free world as a genocidal tyrant, breaking windows and burning a bank in the town of Mar De Plata. Ten thousand demonstrated. Wow! Big news. Not like when a million women march in DC for reproductive rights. We don't hear about that. But just let some Argentines break up their own downtown when Bush is there, and it's all over the news. All the videos were of demonstrators, Hugo Chavez, and the President Kirchner of Argentina. The only clip of Bush showed him dodging a question about Karl Rove with a polite demurral, pleading the pendency of the investigation.

Good thing the important cameramen were out in the streets, and the masked demonstrators causing the violence were raging dramatically, tossing gasoline bombs and letting off steam. Otherwise, they'd probably have shown footage of the entire agonizing press conference Bush held with the "travel pool" of reporters. Agonizing for Bush, at least. The record from the White House press office reveals the whole painful episode, that was devoted exclusively to questions about Karl Rove. Bush engaged in long-winded dodging in his high-school student-government style, declaring policies that ignored the fact that his presidency is on the ropes. If reporters keep on this way, it's going to shake him up.

The NewSpeak Network would rather portray the President as hated by the citizens of Argentina than beleaguered by American reporters about the scandal that is sinking his presidency. Americans can't be allowed to see Bush peppered with difficult questions, providing no answers, like a criminal pleading the Fifth Amendment.

What's amazing about this situation is the media trying to spin this as "less than Watergate," or "not Iran-Contra," or "not Monica Lewinsky." No, it's not any of those things, it's worse than all of them. It's rot at the core, a sick situation that's begging for surgery so drastic that no amount of media Novocaine is going to deaden the pain. In the past, the media aided in exposing the problem, but now it dispenses only eyewash. These reporters here are doing their job, but they might as well be doing it inside a closet, for all the information that gets to the viewing public. Apparently, though, it's not going to matter. Bush's numbers have been on an almost unrelieved downward slide since November 11, 2001, when he had an astronomical 78% approval rating. He's down to half that now, and dropping still. Like the reporter says, people just aren't believing him anymore. And when he trots out his fear-mongering catechism, no one stands up and salutes. Soon it will not be cool to like Bush in almost any society. Then, his administration is dead. With some luck, it will implode with grandiose special effects like the end of The Raiders of the Lost Ark.

WhiteHouse.gov wrote:

Q. Hi, Mr. President. Thank you. Did Karl Rove tell you the truth about his role in the CIA leak case? And do you owe the American people an apology for your administration's assertations that Karl Rove and Scooter Libby weren't involved?

THE PRESIDENT: We're going through a very serious investigation. And I will — have told you before that I'm not going to discuss the investigation until it's completed. And we have got a — my obligation is to set an agenda, and I've done that. And the agenda is fighting and winning the war on terror, and keeping the economic vitality and growth alive, dealing with the energy problem, nominating people to the Supreme Court that adhere to the philosophy that I can depend on — Judge Alito being such a person. I noticed today that they've got a date. I'm disappointed in the date, but happy they do have a firm date for his confirmation hearing. We've got to recover from the hurricanes. So I've got a lot to do, and will continue to focus on the people's business.

Steve.

Q. You've taken a beating in recent weeks, sir. What are you going to do for a fresh start? Are there going to be any staff changes? Would it help if the special prosecutor would wrap up his probe quickly?

THE PRESIDENT: Well, again, you're trying to get me to comment on the investigation, which I'm not going to do. And I hope you understand that. It's a serious investigation, and it's an important investigation. But it's not yet over.

I think it's important for the American people to know that I understand my job is to set clear goals and deal with the problems we face. Now, look, we've got an ongoing war on terror. And my administration is working with friends and allies to find these terrorists and bring them to justice before they strike us again. We're fighting the terrorists in Iraq. And, as you know, we've got a two-pronged strategy, an important strategy, that one — on the one hand, has a political solution to it, on the other hand has a security solution to it. And we're working hard to achieve those objectives. We're laying what I have called the foundation for peace, because democratic nations don't war; democratic nations will be allies with each other in fighting off an ideology that is dark and grim in its vision, and is willing to use murder as its tool.

Elisabeth.

Q. Okay, this is not a question about the investigation, but it's about Karl.

THE PRESIDENT: It sounds like one, though.

Q. Are there discussions in the White House about whether or not Karl will remain in his job?

THE PRESIDENT: Elisabeth, the investigation on Karl, as you know, is not complete. And, therefore, I will not comment upon — about him and/or the investigation. Again, I understand the anxiety and angst by the press corps to talk about this. On the other hand, it is a serious investigation and we take it seriously and we're cooperating to the extent that the special prosecutor wants us to cooperate.

Q. The American people, though — sir, the American people, though, are beginning to question your honesty, according to the polls, 58 percent. And your approval rating is at an all-time low, primarily because, it seems, of this investigation. They are wondering whether you can keep on track and whether to believe you, sir.

THE PRESIDENT: Well, no, I understand there is a preoccupation by polls and by some. I think this may be — I think we've got — this is maybe the fourth or fifth consecutive semi-press conference — press conference or semi-press conference that I've been asked about polls. The way you earn credibility with the American people is to declare an agenda that everybody can understand, an agenda that relates to their lives, and get the job done. And the agenda that I'm working on now is one that is important to the American people.

First of all, it's to protect our country; it's to understand that we're at war with a radical ideology that wants to inflict harm on America and, at the same time, use that harm they inflict to achieve territorial ambition. I've talked a lot recently about the Zawahiri letter to Zarqawi, which is a clear statement of purpose by these terrorists. It should be viewed for what it is: an open warning to the free world that this is a very vital war and we need to win it. So I spend a lot of time talking about that — and more than talking about it, acting on it.

Secondly, you know, our economy has shown amazing resilience in the face of natural disaster, as well as rising energy prices. But we've got to have policies in place that make it possible for the economy to continue to grow. You know, we're down here talking about trade — it's hard to trade with somebody if they're broke. And I've told our partners that we've got good economic growth now. But what we need to do is to work with Congress to make sure that we deal with the energy crisis — what can we do to deal with the energy crisis? Well, we can expand refinery capacity in the United States. I mean, it should be apparent to the members of Congress that when the Katrina hit there was massive disruptions of our own capacity to make gasoline, which put us in a precarious position for the consumers — which would affect the economy, by the way.

And so we'll be talking to Congress about a further energy initiative to make sure we've got economic growth. We've obviously got work to do with Katrina and Rita, the damage from those hurricanes.

And I mentioned the Supreme Court. This is a very vital issue for the United States Senate and for the country. Sam Alito, Jr., is an incredibly intelligent, well qualified person who should be on the Court. I told the leadership I thought it would be best to have the hearings before Christmas. They didn't feel like they could get the job done. I talked to Chairman Specter, and the reason why, at least he explained to me, that he couldn't get the hearings done before Christmas is because Alito had written so many opinions and he wanted to make sure he had time to read them. And they made that decision. Fortunately, there is a firm date and we look forward to working on that date.

And, finally, an issue that is of concern to the American people is the border, is border security. I signed an appropriations bill for border security and during that signature ceremony talked about our strategy to use technology and border patrol and wise policies to do our job, which is to prevent people from illegally — not only people, but, by the way, contraband, guns and drugs — from coming into our country illegally. And so that's the agenda before us, and that's the agenda that I will continue to work on.

[admin]

ROVE PAL KEN TOMLINSON BUSTED FOR LOOTING PBS, by Charles Carreon

2:32am, November 5, 2005

Kenneth Tomlinson, a friend of Karl Rove's who was made head of the Corporation for Public Broadcasting with orders to steer it sharply right, was forced to step down on November 4th for skimming cash from the $400 Million budget. He's still the chairman of the Broadcasting Board of Governors, though, even while the State Department has already found evidence of widespread, intentional theft of government funds. The Cheney-Bush Junta model for "defunding liberal institutions" is more aggressive than the old Reagan "zero budget" approach — they actively loot government institutions until they collapse. But all this criminality is beginning to look like no accident.

STEPHEN LABATON wrote:

November 5, 2005 Spending Inquiry for Top Official on Broadcasting

WASHINGTON, Nov. 4 - Kenneth Y. Tomlinson, the head of the federal agency that oversees most government broadcasts to foreign countries, including the Voice of America and Radio Free Europe, is the subject of an inquiry into accusations of misuse of federal money and the use of phantom or unqualified employees, officials involved in that examination said on Friday.

Mr. Tomlinson was ousted from the board of the Corporation for Public Broadcasting on Thursday after its inspector general concluded an investigation that was critical of him. That examination looked at his efforts as chairman of the corporation to seek more conservative programs on public radio and television.

But Mr. Tomlinson remains an important official as the chairman of the Broadcasting Board of Governors. The board, whose members include the secretary of state, plays a central role in public diplomacy. It supervises the government's foreign broadcasting operations, including Radio Martí, Radio Sawa and al-Hurra; transmits programs in 61 languages; and says it has more than 100 million listeners each week.

The board has been troubled lately over deep internal divisions and criticism of its Middle East broadcasts. Members of the Arab news media have said its broadcasts are American propaganda.

People involved in the inquiry said that investigators had already interviewed a significant number of officials at the agency and that, if the accusations were substantiated, they could involve criminal violations.

Last July, the inspector general at the State Department opened an inquiry into Mr. Tomlinson's work at the board of governors after Representative Howard L. Berman, Democrat of California, and Senator Christopher J. Dodd, Democrat of Connecticut, forwarded accusations of misuse of money.

The lawmakers requested the inquiry after Mr. Berman received complaints about Mr. Tomlinson from at least one employee at the board, officials said. People involved in the inquiry said it involved accusations that Mr. Tomlinson was spending federal money for personal purposes, using board money for corporation activities, using board employees to do corporation work and hiring ghost employees or improperly qualified employees.

Through an aide at the broadcasting board, Mr. Tomlinson declined to comment Friday about the State Department inquiry.

In recent weeks, State Department investigators have seized records and e-mail from the Broadcasting Board of Governors, officials said. They have shared some material with the inspector general at the corporation, including e-mail traffic between Mr. Tomlinson and White House officials including Karl Rove, a senior adviser to President Bush and a close friend of Mr. Tomlinson.

Mr. Rove and Mr. Tomlinson became friends in the 1990's when they served on the Board for International Broadcasting, the predecessor agency to the board of governors. Mr. Rove played an important role in Mr. Tomlinson's appointment as chairman of the broadcasting board.

The content of the e-mail between the two officials has not been made public but could become available when the corporation's inspector general sends his report to members of Congress this month.

That inspector general examined several contracts that were approved by Mr. Tomlinson but not disclosed to board members. The contracts provided for payments to a researcher who monitored the political content of several shows, including "Now" with Bill Moyers, and payments to two Republican lobbyists who were retained to help defeat a proposal in Congress that would have required greater representation of broadcasters on the corporation's board.

The inspector general also examined the role of a White House official, Mary C. Andrews, in Mr. Tomlinson's creation of an ombudsman's office to monitor the political balance of programs.

Mr. Tomlinson has said he took those steps to counter what he called a clear liberal tilt of public broadcasting. But broadcasting executives and critics of the corporation say the steps violated the corporation's obligations to insulate broadcasting from politics.

On Thursday Mr. Tomlinson was forced to step down from the corporation, which directs nearly $400 million in federal money to public radio and television, after the board was briefed about the conclusions by its inspector general. In that inquiry, examiners looked at accusations that Mr. Tomlinson improperly used corporation money to promote more conservative programming.

State Department officials said on Friday that al-Hurra, the Arabic language satellite television network set up by the board of governors, was also being examined by the inspector general for possibly problematic procurement practices. That audit was first disclosed on Friday by The Financial Times.

The audit began at the request of al-Hurra, the officials said. A statement by the broadcasting board said that the agency had "no indication of any wrongdoing."

The network, which receives nearly $50 million in federal financing and is broadcast in 22 countries, was set up to compete with al-Jazeera and other Arab news media. One State Department official said Karen P. Hughes, under secretary of state for public diplomacy, had been briefed on the subject and "awaits the findings of the inspector general's audit."

Steven R. Weisman contributed reporting for this article.

[admin]

CONGRESS: SUN SHOULD SET ON FBI DOMESTIC SPYING
by Charles Carreon
November 6, 2005

New Law Would Criminalize the Refusal To Rat On Your Neighbor

According to a November 6, 2005 article by Barton Gellman in the Sunday edition of the Washington Post, the FBI has been issuing "National Security Letters" at a rate that is a 10,000% increase (one hundred times as many) over past practices. These letters are a fearsome privacy invasion that Congress authorized in the middle of its 911 funk, when the quickest way to be seen as a patriot was to trash civil liberties. All indented quotes are from Gellman’s Washington Post article, entitled The FBI's Secret Scrutiny — In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans:

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. ... Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. ... The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

National Security Letters (NSLs) can be delivered to anyone, require production of any information desired by an FBI agent, and if pending amendments to the authorizing laws are approved, will subject anyone who refuses to comply to criminal penalties. A lawsuit filed by a library employee, who objected to ratting out library patrons for simply sitting at a particular computer, is pending in Connecticut to dispute the authority of the FBI to proceed in this fashion.

The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said. Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. ... Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public.

The FBI preserves and stores all the information it gathers in a data bank that mixes in data gathered from private data-mining companies like Lexis-Nexis, that has previously admitted revealing altogether too much information to the lawyers and law enforcement agencies that access its database.

In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

Assuming that these records that are being accessed can properly be defined as "papers and effects" subject to Fourth Amendment protections, it would appear that the Fourth Amendment is flagrantly violated by this practice, because this hallowed Constitutional provision prevents the issuance of search warrants without probable cause to believe that the target of the search warrant is engaged in criminal activity. Certainly the records of who you talk to, exchange email with, or receive emails from, are entitled to privacy protection, and would not have been coughed up by any information service provider without a subpoena or warrant issued “on probable cause.” Considerably less is required to stimulate the issuance of a National Security Letter that will achieve the same effect.

Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing.

Thus the FBI, an organization that cannot even get a computer system up and running after spending $170 Million dollars on the project through Strategic Applications International Corporation ("SAIC"), has turned its ineptitude into an excuse for further invasions of privacy. Unable to even translate the Arabic language communications that the FBI has been intercepting for the last decade, the agency has apparently turned its efforts to spying on us, because they can read English. This is a lot like the man crawling around on the ground looking for a key under a streetlamp, who when asked by a friend why he is looking there, responds, "Well, I lost it in the house, but there's more light out here." Well, the Saudis are said to have bombed our country, killing thousands, but we sure wouldn't want to try spying on the Saudis — you know they speak a different language!

Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect — a single telephone call, for example — may attract the attention of investigators and subject a person to scrutiny about which he never learns. A national security letter ... yields [data that reveals] where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

The sunset provision on this useless and intrusive system of domestic spying will reduce the use of NSL's at the end of this year, unless Congress renews it. Always demanding a mile when the time is up to return their borrowed inch, the privacy invaders plan on using the renewal requirement as a means to advance their citizen-scrutinizing agenda further. Congress is poised to increase the power of FBI agents delivering NSLs. New legislation assures that intimidating G-men will now come pre-armed with the right to arrest those who refuse to disclose information, like the Connecticut library employee. Spill the beans or go to jail will become the rule. As the Judith Miller case shows, courts are increasingly willing to jail people to extract information, so a law criminalizing noncompliance with secret information requests could lead to more secret internments, an expansion of secret CIA torture cells, and other foreseeable acts of State-sponosored-terrorism against private citizens. Congress is thus planning to grant the FBI, a rogue agency that squanders tremendous amounts of money and accomplishes nothing except intimidating people, more power to intimidate.

In fact, as the Dec. 31 deadline approaches and Congress prepares to renew or make permanent the expiring provisions, House and Senate conferees are poised again to amplify the FBI's power to compel the secret surrender of private records. The House and Senate have voted to make noncompliance with a national security letter a criminal offense. The House would also impose a prison term for breach of secrecy.

Congress, of course, is proceeding on faith that the FBI knows what it is doing with all this data on non-criminal activity. A strange assumption, however, since the FBI is simply out to lunch for all ordinary investigative purposes. Have you ever tried to report a crime to the FBI if you're not a bank with a robbery on its hands? You get an answering machine and no call back. Of course, call and say that your neighbor got drunk and said he wanted to kill Bush and they'll just drive a SWAT team up to his house and blow it up. After Ruby Ridge and the Waco massacre, who could say that these are people to trust? Congress, still in the throes of its drive to stamp out all remaining civil liberties left intact after the enactment of the “Patriot Act,” that’s who!

Like many Patriot Act provisions, the ones involving national security letters have been debated in largely abstract terms. The Justice Department has offered Congress no concrete information, even in classified form, save for a partial count of the number of letters delivered.

And of course, like only Nixon could go to China, only a conservative has the moxie to take aim at this policy. Where are Charles Schumer, Diane Feinstein, Teddy Kennedy, Barbara Boxer, Hillary Clinton, Charles Rangel, and all the other alleged liberals? Let's hear it for the paranoid Right!

"The beef with the NSLs is that they don't have even a pretense of judicial or impartial scrutiny," said former representative Robert L. Barr Jr. (Ga.), who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. "There's no checks and balances whatever on them. It is simply some bureaucrat's decision that they want information, and they can basically just go and get it."

The FBI's head lawyer Valerie Caproni is entirely cavalier about the power her agency wields, expressing zero concern over the fact that these secret information demands on citizens have proliferated into use as a “routine tool.” Bet you a nickel she's a Democrat and hopes for a chance to vote for Hillary.

"If you have a list of, say, 20 telephone numbers that have come up . . . on a bad guy's telephone," said Valerie E. Caproni, the FBI's general counsel, "you want to find out who he's in contact with." Investigators will say, " 'Okay, phone company, give us subscriber information and toll records on these 20 telephone numbers,' and that can easily be 100." ... Since the Patriot Act, the FBI has dispersed the authority to sign national security letters to more than five dozen supervisors — the special agents in charge of field offices, the deputies in New York, Los Angeles and Washington, and a few senior headquarters officials. ... "Congress has given us this tool to obtain basic telephone data, basic banking data, basic credit reports," said Caproni, who is among the officials with signature authority. "The fact that a national security letter is a routine tool used, that doesn't bother me."

The FBI uses absurd, circular reasoning to eliminate the need for any probable cause to believe that the subject of an NSL investigation is actually involved in criminal conduct. Of course, terrorism is the boogieman whose face is used to bamboozle us into accepting this non-logic.

If agents had to wait for grounds to suspect a person of ill intent, said Joseph Billy Jr., the FBI's deputy assistant director for counterterrorism, they would already know what they want to find out with a national security letter. "It's all chicken and egg," he said. "We're trying to determine if someone warrants scrutiny or doesn't."

Mr. Billy, a budding spinmeister if ever there was one, smarmily reassures us that the FBI exercises their power under bureaucratic protocols that assure citizens their Fourth Amendment Rights are being violated according to the rules.

Innocent Americans, he said, "should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law."

I did say the NSLs were useless, correct? As the Gospel says, "By their fruits ye shall know them." Well, NSLs have produced no fruit except the invasion of privacy:

As the Justice Department prepared congressional testimony this year, FBI headquarters searched for examples that would show how expanded surveillance powers made a difference. Michael Mason, who runs the Washington field office and has the rank of assistant FBI director, found no ready answer."I' d love to have a made-for-Hollywood story, but I don't have one," Mason said. "I am not even sure such an example exists."

Of course, dispensing with a need for probable cause permits FBI agents a lot of leeway to just fire away into the darkness of their own ignorance:

A model request for a supervisor's signature, according to internal FBI guidelines, offers this one-sentence suggestion: "This subscriber information is being requested to determine the individuals or entities that the subject has been in contact with during the past six months."

Defenders of NSLs use the tried and tested method of shifting the burden to the opponents to "show abuses" of the policy:

Sen. Pat Roberts (R-Kan.), chairman of the Senate Select Committee on Intelligence [said] "there has not been one substantiated allegation of abuse of these lawful intelligence tools."

When we're talking about nullifying the Fourth Amendment, the shoe should be on the other foot, and the bonehead insistence that no one is harmed by NSLs is ridiculous. Listen to this appartchik who is collecting a Fedeal Treasury paycheck to engage in disinformation that might convince an idiot or a Congressperson:

To Jeffrey Breinholt, deputy chief of the Justice Department's counterterrorism section, the civil liberties objections "are eccentric." Data collection on the innocent, he said, does no harm unless "someone [decides] to act on the information, put you on a no-fly list or something."

How stupid can you get? If a Man In Black shows up at your small town Internet Service Provider with am NSL in his hand and demands a record of all your email and online purchases, and tells them not to tell anyone, do you think that is a routine thing that causes you no harm? Suppose they go to the Video Store, the Library, the Utility Department and Adult and Family Services to get their records, too. This causes no harm? Have they forgotten that in Texas, the standard method of killing a political campaign is just to leak that there's an "FBI Investigation" in the works? Give me a XXX-ing break! As usual, it takes a true conservative to say what is obvious to any lawyer with a Constitutional bone in his or her body:

Barr, the former congressman, said that "the abuse is in the power itself." "As a conservative," he said, "I really resent an administration that calls itself conservative taking the position that the burden is on the citizen to show the government has abused power, and otherwise shut up and comply."

The ACLU, of course, finds it hard to formulate a sound bite that will resonate with the regular folks, adhering to the media-speak that fills their coffers with donations from the politically correct. Pursuing a typically mediacentric agenda, the ACLU focuses on the "chilling effect" of domestic spying on wide-open media consumption.

At the ACLU, staff attorney Jameel Jaffer spoke of "the profound chilling effect" of this kind of surveillance: "If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books. The FBI should not have unchecked authority to keep track of who visits [al-Jazeera's Web site] or who visits the Web site of the Federalist Society."

Considerably more is at issue here than Mr. Jaffer identifies from his media-centric perch. Citizens are being ratted out by the providers of information services, who are giving up electronic records that in years past would have been written on a paper, stored in the citizen’s own file drawers, and clearly protected by the Fourth Amendment. The sun should set on this vehicle for invading the data-vaults to obtain information about who is communicating with whom. The FBI is amassing data on innocent people, and it is plain stupid to think they will never use it to suppress political dissent. In fact, the reverse assumption is the only one supported by the evidence. J. Edgar Hoover operated the FBI as a factory for political blackmail, conducting extensive spying operations on, among others, Ralph Nader, John F. Kennedy, his brother RFK, and Martin Luther King. The file on Dr. King got so large that after the FBI coughed it up in response to a Freedom of Information Act request, it was turned into what many say is an engrossing book. However, we can be sure that is not why J. Edgar Hoover amassed the data, and in a democracy, we have other ways of producing historical biographies.

As the remainder of the article in WAPO makes clear, NSLs for your information may already be out there, trolling for data on you, if you ever get a phone call or communicate with someone the FBI calls "a bad guy." Does that include getting emails from Scooter Libby or Karl Rove? If so, I see a vast use for NSLs right in the Washington DC area. Of course, Mr. Fitzgerald, the Rovegate Prosecutor, is probably too much of a "straight shooter" to use NSLs on the nation's top criminal organization. Just wouldn't be prudent, as old George the First was fond of saying.

For a closing thought to feed your nightmares, just consider this little spoof that some smart criminals are probably already using, or will be, once this new method of privacy invasion is adopted by skilled forgers. Create fake National Security Letters requesting data on people about whom you either want information, or wish to destroy through silent, malicious gossip. Put the Stars and Stripes and the FBI logo, which you can screen-cap right off their website, on the letterhead, but have the return address go back to your own pseudo-FBI office and private phone number. The recipient of the phony NSL can't talk to anyone about the bona fides of the document, and the local FBI office will not take or return calls about secret investigations, so you should be able to get all the information you want about anyone, and silently destroy their reputation using this method. I predict that the first person to get caught doing this will be an ex-FBI agent. Sorry to tell you, but if you search Google for this string — "FBI agent convicted" — you get a lot of hits.

But please don't tell anyone I told you that laws that give government total authority will be abused by people impersonating government. I think that's supposed to be a secret.

[admin]

CABBIES ON CRACK, by Charles Carreon

8:28pm, November 6, 2005   

Every now and then you just have to take a break from it all and laugh your ass off. This is one of the funniest songs I ever heard, "Cabbies on Crack" from Mondo Bizarro by The Ramones. When you feel your life is absurd, yet real, and you are riding the edge of sanity, yet thrilled to still be alive, you know you are in the grip of a Crack Cabbie Straight From Hell! Gee, why does that seem so apropos? Click on the link below to play the tune, and if you don't have a player to play it on, use Winamp. Download it below.

The Ramones wrote:

Cabbies On Crack
Click here to download The Ramones Cabbies On Crack.

Guided to a path, Broadway, 59
Took off like a blast
Almost lost my mind - oh, oh
Cabbies on crack
It first felt like at thrill ride
Excited for a while
Got pretty scary swerving at 100 miles an hour - oh, oh
Cabbies on crack
I want to get out, out of this yellow tomb
I want to get out,
Crack Cabbies Straight From Hell!
And I don't wanna die before I live
Cabbies on
Cabbies on crack
Cabbies on crack
Want my money back
(Pieces of plastic mouse start to get in my mouth - oh, oh)
Cabbies on crack
Times Square was approaching
He braked for the light
At 90 miles an hour, I saw my life go by - oh, oh
Cabbies on crack
I want to get out, out of this yellow tomb
I want to get out,
Crack Cabbies straight from hell!
And I don't wanna die before I live
Cabbies on
Cabbies on crack
Cabbies on crack

[admin]

MEMO TO FITZGERALD: COMSTOCK CAN'T DEFEND LIBBY, by Charles Carreon

12:53pm, November 9, 2005

The media always heaps abuse on the lawyers who defend the likes of OJ Simpson, Michael Jackson, and other purportedly "obviously guilty" individuals, but when it comes to defending traitors, the Benedict Arnolds who betray the nation with lies and concealments, like Oliver North, John Poindexter, John Dean, Bill Clinton, and Scooter Libby, these lawyers are pillars of legal society. Brendan Sullivan, Mr. Not-a-potted-plant himself, has a name as good as gold. "White collar crime" defense is far more prestigious than defending rich folks accused of shootin' people or being gang-affiliated, like Shuge Knight, Snoop Dogg, 'Lil Kim, even Puffy Combs, so it's not the fact that these celebrities can pay, because all good rappers pay their bills.

No, folks, there's a double standard and it's simple to figure out — the looting and screwing of the American sucker-population is a holy, noble endeavor in which the Law has long been a willing accomplice. Nobody calls them "criminal defense whores," like I was sometimes called when I defended people accused of bank robbery, drug dealing, and immigration violations. Nope, they're honorable upholders of the "presumption of innocence."

Actually, to some extent, I agree with that; however, even Benedict Arnold's lawyers shouldn't be Benedict Arnolds themselves. But a turncoat lawyer is just who is heading up his defense — Barbara Comstock, former Department of Justice Lawyer who was on the job during the time period when John Ashcroft was in charge of the investigation.

First, let me ask and answer one question:

Q: Why do we have an independent prosecutor named Fitzgerald?

A: Because Ashcroft was unable to investigate the matter himself because it implicated misconduct in the Junta in which he played a starring role.

Absent the conflict of interest that caused the CIA to look elsewhere for a prosecutor to investigate the outing of their secret agent Valerie Plame, investigating Rove-gate was Ashcroft's job, and the Special Prosecutor was only appointed because the CIA wanted a real leak investigation. So Ashcroft got out of the way, appointed US Attorney Patrick Fitzgerald, and Libby was indicted for interfering with Fitz's investigation. Now he needs a defense, and he's hiring lawyers, including a former US Dept of Justice Prosecutor.

RICHARD W. STEVENSON and ERIC LICHTBLAU for NYT wrote:

November 9, 2005 Libby Establishes a Fund to Help Pay Legal Bills

WASHINGTON, Nov. 8 - I. Lewis Libby Jr., Vice President Dick Cheney's former chief of staff, is establishing a fund to help pay for his legal defense in the C.I.A. leak case, and associates of Mr. Libby have begun soliciting money from his friends and Republican donors, lawyers and people who have been contacted about the fund said on Tuesday.

Barbara Comstock, a Republican communications strategist who has been hired to work with Mr. Libby's defense team, has pulled together a list of potential contributors and has been in touch with some of them in the last week, providing an address in Washington for sending checks, the people said.... "The administration is walking a very tight rope here," said Larry Noble, executive director of the Center for Responsive Politics, a watchdog group, "because they want to support Libby, but they don't want to be seen as strong-arming Republican supporters for money."

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Who is Barbara Comstock? I can understand Judith Miller and the NYT being wrong about WMDs and Achmed Chalabi being a reliable source, after all, Mr. Chalabi had only been convicted of stealing hundreds of millions from a Syrian bank and was otherwise a stainless person. But all the necessary facts about Barbara Comstock can be found in two seconds on her lawfirm's website. Allow me to end the suspense: Barbara Comstock, currently a partner at Blank Rome Government Relations, LLC, was employed by the United States Department of Justice during the DOJ's investigation of the Plame Leak, which disqualifies her from representing "the other side," that is, Mr. Libby, and any other person who ends up charged with crimes as a result of the investigation.

Barbara Comstock Joins Blank Rome Government Relations LLC

WASHINGTON, DC, Monday, September 8, 2003 - David F. Girard-diCarlo, chairman and CEO of Blank Rome Government Relations LLC (BRGR LLC), today announced that Barbara Comstock, Director, Office of Public Affairs, U.S. Department of Justice, will join the firm as a Principal effective October 1, 2003, and will serve clients both as a lobbyist and strategic communications specialist. Most recently, Comstock served as Director, Office of Public Affairs at the U.S. Department of Justice since January 2002. In this position, Comstock was the chief spokesperson and communications strategist for Attorney General John Ashcroft, as well as the spokesperson for the entire Department with responsibility for all public affairs and communications matters. Comstock also oversaw the public affairs offices of the Justice Department components including the FBI, the Drug Enforcement Administration, the Bureau of Prisons, the Bureau of Alcohol, Tobacco and Firearms and the U.S. Marshals Service.

http://www.blankromegovernmentrelations ... ck0903.htm

Now you might want to wonder why Ms. Comstock engineered an exit from the DOJ in September, effective four days after the appointment of a Special Prosecutor, and I would presume it was no accident. As part of the Big Lie Dissemination Team, Ms. Comstock certainly knew that Cheney, Rove and Libby had planned the outing of a CIA agent as a petty political payback.

Washington Post, Oct 29, 2005 wrote:

On Sept. 26, 2003, the FBI and Justice Department began an investigation, and after Attorney General John D. Ashcroft recused himself, U.S. Attorney Patrick J. Fitzgerald in Chicago was named as a special counsel in December 2003 to investigate whether the identification of Plame, who was an undercover CIA officer, was a violation of federal law.

Now, it is more than inappropriate for someone to come right out of the Prosecutor's Office and start defending people who were actively being investigated by the Prosecutor's Office. It violates this all-important Rule of Professional Conduct, enacted by the Washington DC Bar Association, and virtually identical to the rule that applies in all fifty states of the Union:

DC Bar Association Rules of Professional Conduct wrote:

Rule 1.9 — Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

The "interpretive comment" to DC Rule of Professional Conduct 1.9 leaves no doubt that this problem cannot be overcome. When a lawfirm is disqualified from representing someone because it has previously represented a client whose interests are adverse to the new client, all of their lawyers are disqualified. The US DOJ is the lawfirm for the People of the United States. The entire DOJ lawyer corps that has been on the job since the start of the investigation is disqualified. While Ms. Comstock wants us to think she's now stepping out of government employment, the obligation to not switch sides continues after one's employment with the client ends. So even though she thinks she left the DOJ, she retains her obligation to not switch sides.

Comstock is up to her eyeballs in unethical conduct, and a cauterizing needle may be required to restore sight to the blind eyes that allow her to overlook it.

We can't depend on the political process to move against Barbara Comstock. The sleazy nature of politics in Washington even keeps Harry Reid quiet about this topic, which the average Joe and Jane don't know about because the news media doesn't report relevant facts or provide needed analysis. So just like Mike Chertoff thought New Orleans got off easy when Katrina hit because he read something about it in the papers, the Minority Whip can probably blame the media for sending him barking up the wrong tree:

NYT wrote:

Democrats in Congress tried to keep up the political pressure on the White House, seeking a commitment from Mr. Bush that he would not pardon Mr. Libby.

"Although it is too early to judge Mr. Libby guilty or innocent of these particular charges, it is not too early for you to reassure the American people that you understand the enormous gravity of the allegations," Senator Harry Reid of Nevada, the Democratic leader, and three other Democrats wrote to Mr. Bush. "To this end, we urge you to pledge that if Mr. Libby or anyone else is found guilty of a crime in connection with Patrick Fitzgerald's investigation, you will not exercise your authority to issue a presidential pardon."

Yeah, Harry scored a big PR scoop though:

Scott McClellan, the White House spokesman, declined to comment.

So that's the story. If you can't kill an investigation by rigging the prosecution, then just CHANGE SIDES AND DEFEND THE ACCUSED CRIMINAL. When Barbara Comstock saw that her boss Ashcroft wasn't going to kill the investigation, and instead was bowing to pressure, SHE KNEW she needed to get out of there quick, because SHE KNEW there was dirt to hide and an indictment would likely follow.

Can you imagine what would have been said if OJ Simpson had hired a former prosecutor straight out of the the Los Angeles District Attorney's Office? Say, Marcia Clark's close assistant. Well, I think Judge Ito would have been mightily offended, and would have asked Ms. Clark if she wanted the turncoat to be removed from the team. And you can further imagine that, if such an unseemly betrayal of the prosecutor's office had occurred, that the public would have been really disgusted at the defense verdict. It would have brought not only the competence of the prosecutor's office into question — it would have lead to calls for Gil Garcetti's removal as LA District Attorney, because he would have been accused of "throwing the fight."

Judge Reggie Walton should be faced with an Immediate Motion by Mr. Fitzgerald to Disqualify Ms. Comstock from any further representation that would put the power of a former US Attorney on the wrong side of the courtroom. Comstock must be taken off the case, now.

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Memo to Fitzgerald: Comstock Can't Defend Libby

1:47pm, November 9, 2005

The District of Columbia Bar website has a link to the Ethics Rules for Federal Employees. Comment, which the NYT will have to start poring through once they belatedly find their arse with both hands. Get there first by clicking the link at the bottom of this quote. Here's the Comment to DC Rule of Professional Conduct 1.9:

Comment to DC RPC 1.9 wrote:

[1] After termination of client-lawyer relationship, a lawyer may not represent another client except in conformity with the Rule. The principles in Rule 1.7 determine whether the interests of the present and former client are adverse. Thus, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. [2] The scope of a "matter" for purposes of this Rule may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question. Rule 1.9 is intended to incorporate federal case law defining the "substantial relationship" test. See, e.g., T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953), and its progeny; see also Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1315-34 (1981). [3] Disqualification from subsequent representation is for the protection of clients and can be waived by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer's intended role in behalf of the new client. The question of whether a lawyer is personally disqualified from representation in any matter on account of successive government and private employment is governed by Rule 1.11 rather than by Rule 1.9. [4] With regard to an opposing party's raising a question of conflict of interest, see Comment to Rule 1.7. With regard to disqualification of a firm with which a lawyer is associated, see Rules 1.10 and 1.11

http://www.dcbar.org/for_lawyers/ethics ... nflict.cfm

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Memo to Fitzgerald: Comstock Can't Defend Libby

1:50pm, November 9, 2005

1.11:610 Restrictions Arising from Former Government Service: Permanent Prohibition with Respect to Particular Matters Participated in Personally and Substantially (18 U.S.C. § 207(a)(1))

Section 207(a)(1) imposes a permanent bar against a former employee of the executive branch of the United States, or of the District of Columbia, "knowingly mak[ing], with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court martial of the United States or the District of Columbia" on behalf of another person in connection with a "particular matter" in which the pertinent government is a party or has a "direct and substantial interest," in which the former government employee while in government "participated personally and substantially," and which involved "a specific party or parties" at that time. The bar explicitly applies not only to full-time government officers and employees but also to "special Government employees." And although the text of section 207(a)(1) refers only to employees of the executive branch of the federal government, the prohibition applies as well to employees of independent agencies. (This is made clear by the fact that subsections (b), (c) and (d) of section 207 (discussed, respectively, under 1.11:670, 1.11:630 and 1.11:640, below) all explicitly apply to employees of independent agencies as well as those of the executive branch, and all assume that this is also the case with subsection (a), to which each of them makes explicit reference.)

The bar applies to communications to and appearances before the executive and the judicial branches, but not the legislative branch. However, "[f]ormer employees must exercise care in their communications with the legislative branch since such communications may unavoidably also be directed to employees of a department or agency." OGE Informal Advisory Opinion 93x26 (October 4, 1993).

Although the prohibition applies to former employees of both the United States and the District of Columbia, section 207(a)(3) makes clear that former federal employees are barred from contacts with officers and employees of the specified entities of the U.S. Government, while former DC employees are prohibited from contacts with the specified entities of the DC Government; neither group is barred from contacts with entities of the other government.

As described under 1.11:600, above, subsection (j) of section 207 sets out seven general exceptions to some or all of the post-employment prohibitions contained in that section. The prohibition of subsection (a)(1) is subject to only four of those exceptions, namely, nos. (1)—Official government duties; (3)—International organizations; (5)—Scientific or technological information; and (6)—Testimony.

Comparison to Rule 1.11 The statutory bar imposed by section 207(a)(1) is similar to the ethical prohibition imposed by Rule 1.11; it is, indeed, in major respects the model on which the Rule is based. The parallels are that both provisions are permanent, lifetime bars; and that both turn on personal and substantial participation while in government in a particular matter involving a specific party or parties, and on post-government employment in such a particular matter. The key term "matter," moreover, is defined almost identically in the two provisions. There are, however, important differences. The statutory provision is broader in scope in that it applies to all former government employees, whether or not they are lawyers, while the Rule of course applies only to lawyers. But in a very significant way the Rule casts a broader net, for while the statutory provision applies only to representational contacts, with "intent to influence," with any officer or employee of the executive or judicial branches of the government, and so does not prohibit "back office" work, or advice or assistance to another, or representational activities directed to a person or entity other than the government, the Rule prohibits any activity on behalf of a client with respect to a tainted "particular matter." And finally, the statute is concerned only with a post-employment "matter" that is the same as the governmental matter, and in which at the time of the former employee's post-employment contact with the matter the government is a party or has a direct and substantial interest, whereas the DC Rule's post-employment "matter" need not be same as, but may be only substantially related to the governmental "matter," and there is no requirement of a continuing governmental interest in order for the Rule's prohibition to apply.

"Particular Matter Involving a Specific Party or Parties" This phrase is critical in determining the scope of the prohibition of section 207(a)(1), as well as that of section 207(a)(2) (discussed in 1.11:620, immediately below). The term "particular matter" is defined in section 207(i)(3) to include "any investigation, application, request for a ruling or other determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding." The final phrase "involv[ing] a specific party or parties," which limits the defined term "particular matter" as used in the prohibitory provisions of section 207, is not defined in section 207(a)(1). However, 5 CFR § 2637.201(c)(1) sheds some illumination by stating that "[s]uch a matter typically involves a specific proceeding affecting the legal rights of the parties or an isolatable transaction or related set of transactions between identifiable parties."

"Rulemaking" was added to the list of examples of "particular matters" by the Ethics Reform Act of 1989; before that, rulemaking was not only not included in the examples of a "particular matter," but was expressly excluded from the definition by the pertinent regulations. Thus, 5 CFR § 2637.201(c)(1), interpreting section 207 as it stood before the 1989 amendments, draws a distinction between "specific matters" and "policy matters," and declares that "[r]ulemaking, legislation, the formulation of general policy, standards or objectives, or other action of general application" were not "particular matters" under section 207 as it stood before the 1989 amendment. It followed that a former government employee could "represent another person in connection with a particular matter involving a specific party even if rules or policies which he or she had a role in establishing are involved in the proceeding." Id. Thus, the addition in 1989 of "rulemaking" to the examples of a "particular matter" broadened somewhat the scope of the Act's prohibition. The change was not, however, a major one, since "particular matter" must still be read together with the requirement that the matter involve "a specific party or parties": thus, a "rulemaking" will be a "particular matter" only as it involves such specific parties. And "[g]eneral rulemakings do not usually involve specific parties." OGE Summary at 4. "Consequently, it is quite possible that an employee who participated in a rulemaking while employed by the Government will, after leaving Government service, be able to appear before his former agency concerning the application of that rule to his new private sector employer without violating the . . . restriction." Id. There does not appear to be any authoritative guidance as to what sorts of rulemakings would be construed as involving specific parties under the various subsections of section 207 that are governed by the definition in subsection (i), but some guidance may be provided by the regulations addressing waivers and exemptions under section 208, 5 CFR Part 2640, making a distinction between a "particular matter involving specific parties" and a "particular matter of general applicability" – the latter being defined to mean a "particular matter that is focused on the interests of a discrete and identifiable class of persons, but does not involve specific parties." See 1.11:695 at "Waivers and Exemptions," below.

OGE Informal Advisory Opinion 90 x 7 (April 17, 1990) rejected an argument that bilateral trade agreements regarding specific products are not matters involving specific parties because they have general application to specific industries, not individual companies, and so are comparable to general rulemakings. The Opinion held that the countries that are parties to such trade agreements are "specific parties" within the meaning of section 207(a). The text of section 207(a)(1)(C) makes clear that the "particular matter" in which the departed employee participated while in government must have involved a "specific party or specific parties at the time of such participation." (Emphasis added.) Although the statutory text does not refer to "specific party or parties" in connection with the post-employment matter, OGE takes the view that the prohibition also requires that the matter involve some specific party or parties at the time of the post-employment communication or appearance, though such parties need not be the same specific parties as were involved at the earlier stage. OGE Summary at 4. The OGE Summary goes on to say that contracts are always particular matters involving specific parties, and that a Government procurement proposal "has specific parties identified to it when a bid or proposal is received in response to a solicitation, if not before." Id. The prohibition applies only when the "matter" in which the former government employee participated while in government and the matter with respect to which a disqualification may arise after the former government employee leaves the government are the same particular matter although, as has been explained, the specific parties involved may be different. "The same particular matter," however, "may continue in another form or in part." 5 CFR § 2637.201(c)(4). In the determination of whether a "matter" remains the "same," albeit continuing in another form or part, the relevant factors are "the extent to which the matters involve the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important Federal interest." Id. In determining whether two situations are part of the same particular matter, "one should consider all relevant factors, including the time elapsed and the extent to which the matters involve the same basic facts or issues and the same or related parties." OGE Summary at 4.

It is clear that assignment of a contract with the Government from one contractor to another, and modifications to the terms of the contract, do not necessarily make the resulting contract into a separate "matter" from the original one. OGE Informal Advisory Opinion 91 x 24 (July 17, 1991.)

"Personal and Substantial Participation" Section 207(i)(2) defines the term "participated," but only by non-exclusive example; it says that "'participated' means an action taken as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other such action." (Emphasis supplied). No separate definition is provided in the statutory text for the modifying phrase "personally and substantially." Before the 1989 amendments, the Act did not define "participated" separately; rather, the examples now given in section 207(i)(2) followed the phrase "personally and substantially participated by . . ." in the prohibitory text of the provision. Clearly enough, however, the phrase "personally and substantially" continues substantively to modify "participated." And the regulations interpreting "personally and substantially" as used in the Act before the 1989 amendments clearly continue to offer guidance. Thus,

To participate "personally" means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. "Substantially" means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial. 5 CFR § 2637.201(d)(1). The OGE Summary elaborates that "An employee can participate 'personally' in a matter even though he merely directs a subordinate's participation." Id. at 4.

In Shakeproof Indus. Prods Div. of Ill. Tool Workers, Inc. v. United States, 104 F.3d 1309 (Fed. Cir. 1997), the plaintiff sought to compel the Commerce Department to disqualify a law firm from representing another party in an antidumping review proceeding involving spring lock washers, on the basis that a member of the firm had been an Assistant Secretary of Commerce for the Import Administration at the time the antidumping investigation began. The critical issue was whether the lawyer in question had participated personally and substantially in the investigation while at the Commerce Department, so as to require his disqualification under either DC Rule 1.11 or section 207(a). Two documents lay at the heart of the dispute. One was the document that had initiated the antidumping investigation, which had been signed by the Assistant Secretary's deputy. The Commerce Department had found that this did not constitute personal and substantial participation by the Assistant Secretary, and the Court agreed. Id. at 1313. The second document, which the Court found to present a closer case, was one by which the Assistant Secretary had approved a particular method for treating voluntary respondents in non-market economy antidumping cases. The Department had concluded that this document "reflected a policy matter of general applicability, not a decision specific to the lock washer case," although it did refer to that case "by way of illustrating the operation of [the] general policy." Id. at 1313?14. As to this, the Court asserted that, "[w]hile there is ground for debate about the proper characterization of that document, we conclude that the Commerce Department's characterization was not arbitrary or capricious." Id. at 1314.

In Kelly v. Brown, 9 Vet. App. 37 (1996) , the then Court of Veterans Appeals (since renamed the United States Court of Appeals for Veterans Claims) considered whether a lawyer should be disqualified from representing the appellant in a case, in light of the prohibitions of section 207(a)(1) or Rule 1.11 of the Model Rules, by reason of his having previously had contacts with the case while employed by the Department of Veterans Affairs. The contacts in question had consisted of signing a motion for an extension of time and a filing transmitting to the Court the decision of the Board of Veterans Appeals here appealed from. The Court concluded that these contacts did not amount to substantial participation in the case, for purposes of either the statute or the Rule.

It should be noted that the "personal and substantial participation" must have occurred when the government officer or employee was acting "as such," which is to say, in the course of his or her official duties. The point is illustrated by OGE Informal Advisory Opinion 95 x 12 (November 15, 1995), which addressed (but did not resolve) the question whether a former government employee who, while in government, had represented a fellow employee with respect to two EEO complaints, could, consistently with section 207(a)(1), continue the representation after departure from government service. The Opinion noted that although section 205(a) generally prohibits an employee from acting as agent or attorney for anyone else in a matter in which the United States is a party or has a substantial interest, it does make an exception where the representation is "in the proper discharge of [the employee's] duties." [See 1.11:690, below.] Were this the case, then because the representation would have originally been pursuant to the employee's "official duties," continuation of the representation post-government employment would be prohibited by section 207(a)(1). The Opinion also noted, however, that subsection (d) of section 205 permits an employee to represent another who is subject to administrative proceedings "if not inconsistent with the faithful performance of his duties." If this had been the ground of the representation in question, then the post-employment prohibition of section 207(a)(1) would not apply. (The Opinion did not reach a conclusion as to which provision of section 205 applied in the particular circumstances to which it was addressed.)

The regulations interpreting section 207 prior to the 1989 amendments provide additional elaboration that appears to remain valid. First, they suggest that actions do not constitute "personal and substantial participation" in a matter if they are not taken after consideration of the merits of the matter. For example, "[i]f an officer personally approves the departmental budget," he is considered to have participated substantially "only in those cases where a[n individual] budget item is actually put in issue" before him. 5 CFR § 2637.201(d)(1), Example 1 (emphasis added). And even though an officer or employee could or does cause disapproval of a matter for failure to comply with administrative control, budgetary, or other non-substantive standards, he or she "should not be regarded as having participated substantially in the matter, except when such considerations also are the subject of the . . . [subsequent] representation." 5 CFR § 2637.201(d)(2). On the other hand, if an employee has authority to review a matter and to veto it, his or her reviewing it and passing it onto another without other action may constitute "personal and substantial participation." 5 CFR § 2637.201(d)(3) .

Second, under the regulations "self-disqualification" by a government employee from a particular matter before his agency thereby avoids personal or substantial participation with respect to that matter. 5 CFR § 2637.202(b)(5). Such screening, however, does not protect against a finding that a former government employee had "official responsibility" for the screened matters, thereby invoking the two-year prohibition of section 207(a)(2), discussed in 1.11:620, immediately below. Id . Indeed, the very fact of screening would suggest that the matter in question was within the bounds of the employee's "official responsibility. "