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  1. The Massacre in Zangabad, Panjwai: Afghan Testimony, As Reported — Wednesday, June 5, 2013
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The Invaluable Attribute of Independence in Senate Incumbents in an Era of Top-down Backroom Control of Congress by Party & President

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2011 comment thread is available at that link.

Freshman Senator Rand Paul of Kentucky, speaking to Anderson Cooper of CNN, on Friday, May 20, 2011:

Senator Rand Paul: “We go week after week in the Senate and do nothing. I feel like sometimes I should return my check because I go up, they do no votes and no debate. Look at this horrendous debt crisis – we don’t debate that either.”

Anderson Cooper: “Really, you feel like that? You feel like you’re not doing anything there?”

Paul: “Yes. I feel… Absolutely. We go up week to week and there’s no debate in Congress. No debate in the Senate. We sit idly by. Some weeks we vote on two-three non-controversial judges and we go back home. It, really…”

Cooper: “Why is that?”

Paul: “I’m trying to get a vote on Libya. They say they don’t have time. I was told, when I wanted to bring up my resolution on Libya – which I did force them to [for, literally, ten minutes], but I had to kinda capture the floor…”

Cooper: “It got tabled like 90-10…”

Paul: “Yeah, and they weren’t too happy with me because I used some parliamentary procedures to gain access to the floor, and they came running down to the floor. They were apoplectic that I had taken over the floor, and the thing is is that we should be having these debates on the floor – they don’t want to have any debate. I’m asking right now to vote on Libya – I have a resolution saying we’re in violation of the War Powers Act. It’s hard for me to get the floor unless I somehow sneak on the floor when no one’s looking to try to get a vote. Why would we not want to debate great Constitutional questions? When I ran for office, that’s what I thought – there will be great and momentous debates on the floor. We don’t have any because they prevent the debates from ever even beginning.

Cooper: “Senator Rand Paul, appreciate your coming on. Thank you.”

Paul: “Thank you.”

David A. Fahrenthold, providing a rare and welcome account of Senate floor proceedings in the Washington Post, on June 9, 2011:

In the U.S. Senate, this is what nothing sounds like.

“Mr. Akaka”

At 9:36 a.m. on Thursday [6/9], a clerk with a practiced monotone read aloud the name of Sen. Daniel K. Akaka (D-Hawaii). The chamber was nearly deserted. The senator wasn’t there. Not that she was really looking for him.

Instead, the clerk was beginning one of the Capitol’s most arcane rituals: the slow-motion roll calls that the Senate uses to bide time.

These procedures, called “quorum calls,” usually serve no other purpose than to fill up empty minutes on the Senate floor. They are so boring, so quiet that C-SPAN adds in classical music: otherwise, viewers might think their TV was broken.

This year–even as Washington lurches closer to a debt crisis–the Senate has spent a historic amount of time performing this time-killing ritual. Quorum calls have taken up about a third of its time since January, according to C-SPAN statistics: more than 17 eight-hour days’ worth of dead air.


“It’s not even gridlock. It’s worse than that,” said Allan Lichtman, a history professor at American University who once ran for the Senate himself as a Democrat. He said “gridlock” implies that somebody was at least trying to get legislation passed.

Instead, he said, this year “they’re not even trying to get something done.”

To an outsider, a quorum call looks like a serious–if dull–piece of congressional business. A clerk reads out senators’ names slowly, sometimes [usually] waiting 10 minutes or more between them [and rarely getting beyond the first few names].

But it’s usually a sham. The senators aren’t coming. Nobody expects them to. The ritual is a reaction to what the chamber has become: a very fancy place that senators, often, are too busy to visit.

This is [part of] what happened: Decades ago, senators didn’t have offices. They spent their days at their desks on the Senate floor. So clerks really needed to call the roll to see if a majority was ready for business.

Now, senators spend much of their time in committee rooms, offices and elsewhere. If no big vote is on the horizon, often nothing at all is happening on the Senate floor.

But Senate rules don’t allow for nothing to happen.


After 12 minutes, Sen. Mark R. Warner (D-Va.) showed up. “I ask [unanimous consent] that the proceedings of the quorum be dispensed with,” he said. That’s how quorum calls usually end: The next senator who wants to speak asks for a halt.

After Warner gave a brief speech on the value of federal workers, it happened again. “Mr. Akaka,” the clerk said. Twenty-one minutes of silence.

At a deli in the Senate’s basement, it was clear this was wearing on people. One Capitol employee asked another: Where are you working today? “Senate chamber,” his buddy replied. “Shoot myself in the head.”

These sham roll calls have been a feature of Senate debate for decades, but this year has been special: According to C-SPAN, the Senate has spent more than 32 percent of its time in quorum calls. That’s more than in any comparable period dating to 1997.

The main reason seems to be the bare-bones agenda pursued by the Senate’s Democratic leaders: There have been just 87 roll-call votes so far, compared with 205 in the same period during 2009. Senate Democrats have not even proposed an official budget; the strategy appears to be to shield vulnerable incumbents from controversial votes on spending.

“Why are we here?” asked Sen. Tom Coburn (R-Okla.), a critic of the large number of quorum calls this year. The Senate is not operating the way it was designed, because politicians don’t want to be on record.”

A crucial point that’s summarized by Fahrenthold’s “But Senate rules don’t allow for nothing to happen” is that, in the absence of that “slow-motion” roll call that I call the Fake Quorum Call – which never comes to an end on its own, and may only be lifted by unanimous consent or by the Majority Leader, unless and until some Senator has the guts to challenge the Party status quo by asking that the Senate’s parliamentary rules be enforced – or of any actual floor debate, the Presiding Officer is required under the rules and precedents of the Senate to put the pending question (whatever it is – a motion to proceed, an amendment, a bill, a nomination) to a simple-majority vote of the Senate:

“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.”
– Riddick’s Senate Procedure

Which is a fact that should help illuminate how insidious (and wholly unnecessary) it is that the current Party majority in the Senate now routinely abuses the optional Rule XXII cloture motion process, in the absence of obstructive floor debate – thereby preventing routine Senate debate and amendment (the transaction of Senate “business” without the need for unanimous consent), while simultaneously imposing supermajority thresholds for the adoption of legislation and confirmation of nominees in the Senate. The only reason for the current Democratic majority to avoid the use of the default simple-majority Senate rules, given the absence of actual debating filibusters in the Senate for almost two decades now – via their resort to the optional supermajority rule and procedure (which was created in 1917 to overcome rare obstructive floor debate) – is to avoid public debate and unpredictable democratic legislating, conducted in the open by the representatives of the people. [A reason that routinely translates into “Republican filibusters” in Democratic Party-speak, as embraced and amplified by Party hacks and widespread journalistic malpractice.]

So, although David Fahrenthold (and certainly most of his colleagues) may not realize it, that “slow-motion” Senate roll call that never actually determines whether a Constitutional quorum is present (in the empty Senate Chamber) is doing a lot more than “biding the time” of the Senate, and it’s seriously damaging the institution. The constant imposition of the Fake Quorum Call, unchallenged by any Senator, and deployed in lieu of a simple Senate recess – which would make the Senate’s inaction plain for all to see, and which the Senate routinely agrees to every Tuesday, at midday, while members attend their private Party luncheons – creates the need for unanimous consent simply to conduct ordinary business on the Senate floor. That vests inordinate power in a few hands at the top of each Party organization, and those Party bosses, in turn, regularly try to privately “deal” in the backrooms for a unanimous way to the floor through their self-imposed Fake Quorum Call blockade of the Senate floor.

It’s the increasing imbalance of power between the three branches of government brought home to the Senate, where the elected power-holders in the institution allow others to wield their power for them. [And no, the absent Senators aren’t all off conscientiously attending committee hearings that conflict with Senate floor sessions (despite a Senate rule, for good reason, precluding that, which must be waived daily) – as the appalling absentee rate at important Senate committee hearings repeatedly demonstrates.] Read the rest of this entry »

Permanent link to this article: http://debatingchambers.com/112_invaluable-independence-in-senate-incumbents-in-era-of-top-down-backroom-control-of-congress-by-party-and-president

The Constitution, The War Powers Resolution, & Libya: Rand Paul Defends Congressional Authority, Carl Levin Cedes It

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2011 comment thread is available at that link. In Comment 51 of that thread, I detail how the War Powers Resolution’s Constitutionally-derived limits of “national emergency” defensive “hostilities” [undertaken, and/or reported as specified in 50 USC § 1543(a)(1)] – which trigger the 60-day clock of the War Powers Resolution (WPR) – were simply ignored in the president’s letter to Congress about his war on Libya. That sort of bad faith presidential evasion of the War Powers Resolution should be recognized by Members of Congress for what it is, and be challenged, until an overdue rewrite or revocation of the WPR is in place. Comment 51 also includes an excerpt from a paper explaining why “what the President constitutionally needs from the United States Congress, he cannot get from the United Nations Security Council.”

United States Constitution, Article I, Section 8:

The Congress shall have power . . .

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

Professor Jules Lobel, in prepared testimony testimony to an April, 2008 House Foreign Affairs subcommittee House Foreign Affairs subcommittee:

The Article I congressional power to declare war is not limited to the formal power of issuing a declaration, nor to authorizing full-scale wars, but was intended to give Congress the power to decide whether the United States should initiate any offensive military hostilities, however big or little, or for whatever purposes.9

[Footnote 9: See, e.g., Bas v. Tingy, 4 U.S. 33, 35-36 4 Dall. 37, 40 (1800) (Washington J.) (“every contention by force, between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.”).]

Moreover, to the extent there is any doubt as to the meaning of the Declare War Clause, the clause immediately following it gives Congress the power to “grant letters of Marque and Reprisal.” In the 18th century, Letters of Marque and Reprisal had two meanings. The first, now obsolete, referred to authorization given to private merchantmen to fight the enemy. Second, and still relevant today, letters of marque and reprisal referred to imperfect wars, special wars, limited wars, reprisals — all of which constituted hostilities that were something less than full-scale war.10 For example, both Alexander Hamilton and Secretary of War James McHenry advised President John Adams in 1798 that any use of American naval force beyond repelling attack on the nation’s seacoast, armed vessels or commerce within American waters, “comes within the sphere of reprisals and . . . requires the explicit sanction of that branch of the government which is alone constitutionally authorized to grant letters of marque and reprisal.”11

Professor Michael Ramsey, writing at opiniojuris.org on March 23, 2011:

Does the Libya intervention amount to a “war” in constitutional terms? Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.” International law writers of the time expressed similarly expansive definitions. Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course.


Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way. Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks. (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.


If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power. James Wilson told the Pennsylvania ratifying convention: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.”

War powers expert Louis Fisher, in a 1998 paper co-authored with David Gray Adler:

The meaning of the war clause was thus settled at the dawn of the republic. The word “declare” enjoyed a settled understanding and an established usage. As early as 1552, the verb “declare” had become synonymous with the verb “commence.” They both mean the initiation of hostilities.31 This was the established usage in international law as well as in England, where the terms declare war and make war were used interchangeably.

This practice was familiar to the Framers. As Chancellor James Kent of New York, one of the leading jurists of the founding period, stated: “As war cannot lawfully be commenced on the part of the United States, without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.” While Kent interpreted “declare” to mean “commence,” he did not assert that the Constitution requires a congressional declaration of war before hostilities could be lawfully commenced, but merely that it be initiated by Congress. What is “essential,” according to Kent, is “that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprize neutral nations of the fact.”32 Thus, Congress need not declare war. All that is required under American law is a joint resolution or an explicit congressional authorization of the use of military force against a named adversary.

Louis Fisher in written testimony for a January, 2007 Senate Judiciary Committee hearing:

The breadth of congressional power is evident simply by looking at the text of the Constitution and comparing Article I to Article II. The powers expressly stated give Congress the predominant role in matters of war. However, this purely textual reading misses what the American framers did, why they did it, and how they broke with the reigning British models of executive power. Their study of history led them to place in Congress the sole power to take the country from a state of peace to a state of war. They left with the President, in his capacity as Commander in Chief, certain defensive powers to “repel sudden attacks.”


The framers carefully studied this monarchical model and repudiated it in its entirety. Not a single one of Blackstone’s prerogatives was granted to the President. They are either assigned entirely to Congress (declare war, issue letters of marque and reprisal, raise and regulate fleets and armies) or shared between the Senate and the President (appointing ambassadors and making treaties). The rejection of the British and monarchical models could not have been more sweeping.

With that as background, here’s what the United States Senator who presently chairs the powerful Armed Services Committee read aloud, from prepared opening remarks for a March 8, 2011 full committee hearing March 8, 2011 full committee hearing [only a placeholder page for that hearing remains on the SASC website since the site’s makeover in 2012 or 2013] convened “To receive testimony on the Department of the Navy in review of the Defense Authorization Request for Fiscal Year 2012 and the Future Years Defense Program” (informally, the “Navy posture hearing”) – at about 27 minutes into the recording of the hearing, a few minutes into his opening statement:
Read the rest of this entry »

Permanent link to this article: http://debatingchambers.com/107_the-constitution-the-war-powers-resolution-and-libya-rand-paul-defends-congressional-authority-carl-levin-cedes-it

(Debating) Filibuster vs. (Optional) Cloture: The Self-Inflicted Catch-22 in Senate Rule XXII

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2011 comment thread is available at that link.

From Democracy Means Fair Employment Practices Pamphlet No. 198, CIO Education Department, October 1951. (source: Tobias Higbie via Flickr)

This diary is intended – with limited technical detail, so as not to lose everyone in the weeds – to be a guidepost for deciphering this week’s (scheduled) public discussions, and reporting about those discussions, in the Senate – beginning today, Tuesday, January 25th – about how that federal legislative body operates, or should operate. [The 112th Senate met for the first time on January 5, 2011, and then “recessed” until 10 a.m. today – which, under its Standing Rules and precedents, continues the “legislative day” of the Senate’s first session into today’s session, and potentially future sessions, until the Senate formally “adjourns.” As a related aside, I question whether “Jefferson’s Manual” – guidance for a legislative body without any of its own rules – likewise provides that multiple “recessed” calendar day sessions of the Senate, separated by weeks, count as one “legislative day.”]

Included below are a number of facts, about existing Senate rules and practices, which starkly contradict the conventional wisdom generated by reflexively-partisan Senators themselves – as uncritically accepted and repeated by the national media – about what existing Senate rules do and don’t “require.” As most of us recognize, members of the American media today who have relatively easy access to Senators, and to other powerful national figures, rarely meaningfully challenge those privileged to hold such power. That evidently goes double when simplistic, widespread partisan myths have come to predominate and obscure the inconvenient, unspoken truths about the non-partisan institution in which United States Senators serve.

This is one citizen’s informed attempt to publicly state those consequential, unspoken truths, however much they may continue to be studiously ignored by the wielders and courtiers of power in Washington, D.C. – people who are evidently very driven to protect abusive Party practice and privilege, even at the expense of the public, self-governing institution of our federal Senate itself. This diary mostly summarizes; my December diary about Congress focused at length on the alarming fundamentals of its operation today, in both the House and Senate, and further details the dramatic difference between a debating “filibuster,” under the Senate’s simple-majority regular order, and an optional “cloture motion” that seeks to supplant that order with a supermajority voting threshold; and – with regard to the undiminished ability today of a Senate majority, under existing Senate rules, to force the real (debating) filibuster – this technical comment capped an in-depth examination of Senate rules and precedents that selise and I conducted last year in three FDL working diaries.

There have been many misleading claims made, or dishonorably implied, about the Senate and its rules by Senators themselves in recent years, under both Republican (Bill Frist) and, especially, Democratic (Harry Reid) majorities, so it’s difficult to know which myth to address first, or at all. What follows, therefore, in brown text, more or less in order of their appearance, are three of what I consider to be the most prevalent and damaging myths, with the facts, in red and black text, that refute them – facts reported without fear of or favor to any political Party. [As I’ve repeatedly said, any evidence to the contrary about my assertions of fact – anything that I’ve overlooked or misstated – is welcome and invited.]
Read the rest of this entry »

Permanent link to this article: http://debatingchambers.com/110_debating-filibuster-vs-optional-cloture-the-self-inflicted-catch-22-in-senate-rule-xxii

"Just Imagine"…Unchallenged, Government Tells Supreme Court While Torturing: "The United States Is Gonna Honor Its Treaty Obligations"

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2011 comment thread is available at that link.

David Cornwell (British author John le Carré) speaking in a March, 2002 interview:

The Cold War was fought under a constant mystery: How much can we do in defense of a free and decent society and remain a free and decent society that is worth defending? So there was always a very great unease, particularly in the secret world, about the methods with which we protected our virtue, as we saw it.


When you’ve got a preconception, you can always decorate it with slightly bent intelligence.

On this ninth anniversary of the opening of the notorious American prison camp built on a U.S. Navy Base at Guantanamo Bay, Cuba to hold, and, above all, to interrogate, foreigners claimed to be law of war combatants, I’ve transcribed below part of a recent interview of an English-speaking detainee – a citizen of Britain – who was transported by cargo plane from Afghanistan to Guantanamo’s Camp X-Ray in February, 2002. [His two British companions, Shafiq Rasul and Asif Iqbal – they’re collectively known as the “Tipton Three” – were flown to Cuba a month earlier, on January 13, 2002, two days after the prison camp opened nine years ago today, 1/11/11.]

That former detainee is Ruhal Ahmed, and the transcribed portion of his joint interview with Shafiq Rasul (made especially poignant and compelling by the presence of Ahmed’s young daughter), which was conducted in East London by British writer Andy Worthington last September 18th – nine years to the day after President Bush signed the never-rescinded Congressional Authorization for Use of Military Force (war) against the perpetrators of 9/11/2001 – may be viewed here (starting about five minutes in; don’t miss Shafiq Rasul’s account in the first two minutes of the clip).

2010 screen-captured photo of former Guantanamo prisoner Ruhal Ahmed

Ruhal Ahmed and daughter in London on September 18, 2010

Interspersed with my transcript of Ahmed’s account of his pre-April, 2004 Guantanamo experiences, is my transcription of an exchange that took place in open court in the United States Supreme Court, on April 28, 2004, as two of the justices questioned the appointed representative of the U.S. government at the time, Deputy Solicitor General Paul Clement of the Executive Branch’s Department of Justice. Clement was resisting, in the name of the President and Congress and the American people, the efforts of another wartime detainee – U.S./Saudi citizen Yaser Hamdi – to have his claim, of being unlawfully detained as an armed-conflict combatant, heard and adjudicated by a neutral decision-maker in our independent Judicial Branch of government, or elsewhere.

Ruhal Ahmed and his two companions were seized by Northern Alliance forces in northern Afghanistan (where they’d been touring the area prior to attending the wedding of Iqbal in Pakistan, apparently partly in search of “dope,” but without even a tangential connection to any armed conflict, if one can prove a negative) in late November, 2001, were soon transferred to the custody of American Special Forces troops in Afghanistan, and then forcibly flown in January and February, 2002 to Guantanamo Bay, Cuba, where they were held, abused, and interrogated, until released to British custody – without explanation, apology, or reparations from the United States President or Congress then or since – in March, 2004.

Ahmed’s appallingly-abusive treatment and torture, while in American military custody in Afghanistan and Guantanamo, were detailed at length in a joint public account by the three British friends on July 26, 2004, as part of The Guantánamo Testimonials Project of the University of California at Davis’s Center for the Study of Human Rights in the Americas (CSHRA). That laudable academic project has been voluntarily compiling, during the abdication of Congressional oversight and DOJ enforcement of the law against powerful government actors, the evidence of crimes committed by agents of our federal government, that other members of our government should have been compiling and using to impeach and prosecute, years ago.

Some excerpts from that Guantánamo Testimonials Project written account:

80. During the first several weeks [in Guantanamo] the American interrogations with all three [men] consisted of pressing them to ‘just say you’re a fighter’. Asif [Iqbal] was told ‘if you just say you’re a fighter, because of the Geneva Convention when the war is over you’ll get sent back to England’. [Ruhal Ahmed] was told ‘just say you’re a fighter and you’ll go home’. He was told ‘you’ve come to kill American and British soldiers, coalition forces’. They talked about ‘allied forces’. They referred to the Northern Alliance as being the same as ‘allied forces’.


98. The interrogators very rarely introduced themselves. Occasionally they lied about the organizations they worked for and all three men believe the names they gave were almost always false. This misinformation was quite common. As an example, on one occasion [Ruhal Ahmed] told an investigator that one of her colleagues from the FBI had kept him in the interrogation room for 18 hours (this was in Camp Delta). He described the interrogator. The person to whom he was complaining told him that he knew the woman and that she was not from the FBI but from Military Intelligence.

99. In relation to the interrogators, they generally changed. It was very rare to have the same interrogator on a regular basis. Shafiq [Rasul] says ‘I only ever saw the same interrogator on three occasions at the most’.

100. The organizations that were involved in the interrogations included the CIA, FBI, DOD, MI5, NCI (Navy Crime Investigators), NSA, Army CID.
Read the rest of this entry »

Permanent link to this article: http://debatingchambers.com/99_just-imagine-unchallenged-government-tells-supreme-court-while-torturing-the-united-states-is-gonna-honor-its-treaty-obligations

Lack of Public Debate in the House and Senate Threatens Democratic Self-Government; Both (Power-Centralizing) Parties Impede Its Return

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

This diary covers a lot of territory at less than typical ‘blogging speed’ (I doubt that it can be comfortably read in one sitting), in order to provide more context and perspective in one place than is usually provided when its subject matter is discussed in the blogosphere. Though there are related tangents discussed, the core of the diary focuses on the U.S. Congress – the first among equals of our three branches of government, which is now in transition from the 111th Congress to the 112th – and the ways in which the Senate and House today mostly fail, on matters of the greatest consequence to the nation and its people, to operate as designed and intended.

As it happens, just two days ago, on Friday, December 10, Senator Bernie Sanders of Vermont provided a vivid example of the value of public debate in Congress – debate that fosters a better understanding of national policy choices and an informed electorate – which is something that this diary seeks to highlight and extol. [To read the floor remarks of Senator Sanders Friday, click on “Senate” next to December 10 here, then choose Item 12 (“The Economy”) in the subsequent list – you will likely need to go back to the first page and repeat that process a few times as you read through his remarks, because search results on that site time out.]

Senator Sanders so far has in fact done nothing to materially delay (“filibuster”) the business of the Senate, with his eight hours of debate against a profound tax policy change that has bypassed all committees in Congress, and would be unamendable in the Senate – nothing, that is, beyond extending the typical early adjournment of the Senate on Fridays, and thus imposing to some degree on Senate staff and on the Presiding Officer(s). Most of his colleagues, however, had already returned home by early Friday, as usual, having been told Thursday evening that no further votes would be held in the Senate until Monday afternoon. Nevertheless, as I hope this diary makes clear toward its close, what Senator Sanders did on Friday – by actually speaking at passionate length on the floor – was more in the nature of a genuine “filibuster” than anything we’ve seen from the minority Republicans throughout the so-called “record” number of “filibusters” in the Senate under recent Democratic majorities.

Time will soon tell whether Senator Sanders plans to transform his Friday speech into extended public debate and objections which would actually meaningfully impede passage of the tax policy changes he opposes. So far, Sanders – and every other Senator – has already waived the reading of the substitute amendment/deal [SA 4753 to H.R. 4853], and declined to exercise opportunities to delay a final vote on the measure. For example, Sanders gave his consent to waive the rules of regular order for the consideration of legislation, and didn’t object to Harry Reid’s unanimous consent request to immediately accept the motion to proceed to the measure, without debate, last week. As a result, the tax deal was officially placed before the Senate for its immediate consideration as of Thursday, December 9, 2010.

Public objections and further debate from Sanders that actually impede the intended speedy passage of the tax measure through the Senate would indeed amount to a genuine “filibuster,” similar to what Chris Dodd practiced against the FISA Amendments Act in 2008. Sanders also has the looming close of the 111th Congress in his corner to add weight to his delaying tactics, if he’s serious about preventing or delaying passage of the deal (thereby incurring the wrath of many powerful people in and out of the White House). If anyone’s interested in more detail, I can elaborate in comments, and try to answer questions, about what Senator Sanders procedurally did Friday, with his hours of impassioned speaking on the Senate floor against another Obama-driven backroom deal (aka “TARP II” in future, perhaps); what Senate Democrats (specifically, Harry Reid, Max Baucus, Joseph I. Lieberman, John D. Rockefeller IV, Byron L. Dorgan, John F. Kerry, Sheldon Whitehouse, Mark L. Pryor, Robert P. Casey, Jr., Richard J. Durbin, Mark R. Warner, Jeanne Shaheen, Ben Nelson, Evan Bayh, Christopher J. Dodd, Kent Conrad, Jim Webb, Bill Nelson, and Amy Klobuchar) did to preempt the Sanders “filibuster” before it even began (as the Democratic Senate under Majority Leader Reid has done with every threatened filibuster by a minority since 2006, thereby voluntarily imposing supermajority rule on the Senate despite the absence of actual filibusters); and what Sanders may now easily do under Rule 22 (that is, cloture – since those 18-19 Democrats yesterday voluntarily invoked that supermajority rule) to at least significantly delay a final vote on passage of the tax cut deal, beginning at 3 p.m. Monday, when the cloture motion will be voted on by the Senate (assuming that 60 Senators vote to invoke cloture to “stop” the already-ended or suspended Sanders speech, as President Obama and Majority Leader Reid are counting on them to do).

Broadening the discussion of the latest specific Senate action to the more general habits of Congress today, I contend, and try to comprehensively make the case below that, if Americans value liberty and publicly-accountable self-government, we cannot and should not continue to countenance Members of Congress who conceal their actions (or failures to act) in federal office from public scrutiny, as most members of the national political media today help most legislators to do by basically ignoring their daily activities – whether by adopting the media’s obsessive focus on an over-hyped, self-aggrandizing presidency, or otherwise leaving our federal representatives alone to work (or to secretly delegate to others) in the dark. There even seem to be some promising developments from the inside to report that would help us to change the present course of our national legislature: The leadership of the new Republican House, hard as it may be to believe, just might mean what it says about starting to bring the light of day into the backrooms of Congress.

To provide documentation on the subject for both houses of Congress, I include separate summarized examples below of how the House and Senate operate today (including links to detailed explanations I’ve made in the past about how particular pieces of legislation were handled), and focus toward the end on key facts about debate and filibustering in the Senate that are rarely explained by legislators of either Party, and are obviously widely misunderstood (or ignored) by both the public and national reporters based in Washington.

Here’s a statement of what I consider to be foundational truths – truths actively suppressed and disdained by promoters of an undemocratic status quo – about our nation’s system of government:

The importance of Congress is its capacity for diversity and openness (relative to the executive branch) – the opportunity it gives to express different sentiments, opinions, and values. It is a disorderly operation and disappointing to those who want firm direction and quick action. But this free play of ideas, as well as the freedom not to move until the time is right, is essential to democratic government. What is needed from Congress is the daily grind of overseeing administration policies, passing judgment on them, and behaving with confidence as a coequal branch. This takes courage and an understanding of constitutional responsibilities.


Congress must be willing to participate actively in questions of national policy, challenging the President and contesting his actions. It cannot be viewed as quarrelsome behavior for Congress to assess presidential action independently. Issues need the thorough explorations and ventilation that only Congress can provide.
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Yemen’s Foreign Minister Al-Qirbi Admits Permission Granted, Withdrawn for U.S. Attacks on Neutral Yemen, Reports CNN

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link. A January 4, 2010 U.S. State Department cable, sent from the American embassy in Sanaa, Yemen to multiple Executive Branch recipients – entitled “SUBJECT: GENERAL PETRAEUS’ [1/2/2010] MEETING WITH [PRESIDENT] SALEH ON SECURITY ASSISTANCE, AQAP STRIKES” – was leaked to WikiLeaks.org, which released it to the public domain on August 30, 2011 (with similar versions apparently previously released in November/December 2010); that cable confirms the CNN & AFP/Amnesty International reporting below about Yemeni/U.S. cooperation in the “successful” 12/17/2009 & 12/24/2009 U.S. missile-strike “operations” in Yemen. Subsequently, on September 30, 2011, the Executive Branch of the United States government deployed a CIA-operated, missile-armed drone (and one or more military-operated, missile-armed jets) inside the sovereign territory of Yemen, and deliberately killed American-born Anwar Al-Awlaki and three companions (one of whom was also a U.S. citizen), as they traveled together on a public road. Ten months earlier, on December 7, 2010, federal district Judge John Bates had thrown the plea of Al-Awlaki’s father (quoted below), for due process for his hit-listed American citizen son, out of court as non-justiciable by the American judiciary, without bothering to rule on the merits of Mr. Al-Awlaki’s life-and-death case. [Specifically, wrote Judge Bates: “Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.” It was a typical perversion of his solemn judicial role by Judge Bates, to avoid his duty to mete out justice, even, and especially, for the powerless and demonized, and even when it would displease the powerful – which he cloaked behind 83 pages of spurious claims about lack of jurisdictional authority. The reasons for that supposed lack of authority were chillingly described (by an Executive Branch eager to continue its abuse of power, obligingly parroted by Bates) as the justice-foreclosing – and, as it predictably turned out for Anwar Al-Awlaki and his companions, life-foreclosing – “threshold” hurdles of “standing, the [judiciary-concocted, so-called] political question doctrine, the Court’s exercise of its ‘equitable discretion,’ the absence of a cause of action under the Alien Tort Statute (‘ATS’), and the [judiciary-concocted, so-called] state secrets privilege.”]

Yemen’s “neutral” territory, that is, given the explicit target(s) that the United States Congress (alone among nations in this regard, as far as I know) selected and authorized the President to attack with armed force under the law of war, by passing the never-revisited 9/18/2001 Authorization for Use of Military Force (AUMF):

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In what way did Yemen, or Anwar Al-Aulaqi (aka Anwar Al-Awlaki), “plan, authorize, commit, or aid the terrorist attacks that occurred on September 11, 2001, or harbor such organizations or persons”??

Especially given that Anwar Al-Awlaki was a resident of the United States at the time of the 9/11 attacks, and for the decade that preceded them:

Plaintiff’s son, Anwar Al-Aulaqi, was born in New Mexico in 1971. Plaintiff remained in the United States with his family for the next seven years, until 1978, when they moved back to Yemen.


In 1991, Plaintiff’s son Anwar Al-Aulaqi returned to the United States to attend college at Colorado State University. Anwar Al-Aulaqi went on to obtain his master’s degree at San Diego State University and later enrolled in a Ph.D. program at George Washington University, which he attended through December 2001. He married and had three children while living in the United States. He moved to the United Kingdom in 2003, and to Yemen in 2004.

At this point, given the public information that’s available, Yemen seems very much within its neutral-state rights to question any characterization of Al-Awlaki as an “enemy belligerent” fighting us under the 2001 AUMF-authorized armed conflict (as defined by the law of war), or as any “part of” the enemy forces against which Congress in 2001 authorized hostilities (and related detention, under the law of war) by our military. Neutral-state law of nation rights of Yemen that conflict, no doubt, with the asserted, but fraudulent, interpretations of the law of nations, and its subsidiary law of war, with which the Executive Branch (and the media, in the absence of judicial or congressional checks) is now thoroughly contaminated.

And yet, the United States military has apparently already killed at least 41 innocent civilians in Yemen, with the permission of the government of Yemen, in an attempt to kill native-born U.S. citizen Anwar Al-Awlaki, who left this nation more than a year after 9/11, and has been charged with no crimes:

In January 2010, the Washington Post reported that Anwar Al-Aulaqi had been added to “a shortlist of U.S. citizens” that JSOC was specifically authorized to kill. The same article reported that Anwar Al-Aulaqi had survived a JSOC-assisted strike in Yemen in late December 2009. That strike reportedly killed 41 civilians, mostly children and women.

This is how the Agence France-Presse, in June, 2010, reported that December, 2009 “strike” in Yemen, drawing on the investigative work of Amnesty International:

(AFP) – Jun 6, 2010

LONDON — A US cruise missile carrying cluster bombs was behind a December attack in Yemen that killed 55 people, most of them civilians, Amnesty International (AI) said on Monday.

The London-based rights group released photographs that it said showed the remains of a US-made Tomahawk missile and unexploded cluster bombs that were apparently used in the December 17, 2009 attack on the rural community of Al-Maajala in Yemen’s southern Abyan province.


A military strike of this kind against alleged militants without an attempt to detain them is at the very least unlawful,” said Philip Luther, deputy director of AI’s Middle East and North Africa Programme.

Yemen’s defence ministry had claimed responsibility for the attack without mentioning a US role, saying between 24 and 30 militants had been killed at an alleged Al-Qaeda training camp.


“The fact that so many of the victims were actually women and children indicates that the attack was in fact grossly irresponsible, particularly given the likely use of cluster munitions,” Luther said.


[Amnesty International] said photographs it had obtained showed damaged remains of the BGM-109D Tomahawk land-attack cruise missile.

As of yesterday, September 30th, thanks to reporting by CNN’s Mohammed Jamjoom, we now appear to have official, on-the-record confirmation from the government of Yemen of the evidence unearthed by Amnesty International:

Sanaa, Yemen (CNN) — The United States has carried out airstrikes in Yemen, Yemen’s foreign minister told a pan-Arab newspaper in an interview published Thursday, marking that government’s first official confirmation of a U.S. military role in its fight against terrorism.

Foreign Minister Abu Bakr al-Qirbi told the Saudi-owned Al-Hayat newspaper that the air strikes ended in December because the “Yemeni government ascertained they weren’t achieving results.”

Al-Qirbi also told the newspaper that combating al Qaeda “is the responsibility of the security and counterterrorism forces in Yemen.”

Yes, combating international criminals is “the responsibility” of a nation’s government, when that nation is sovereign, governed, and not in a state of external war…

Just as it is that government’s responsibility to cease and desist “unlawful” attacks against its own citizens – euphemistically “because they weren’t achieving results,” or otherwise – by withdrawing the permission to bomb its territory that had been granted to a more powerful, heavily-militarized nation with which Yemen is at peace.

CNN’s Jamjoom on September 23rd further documented the evidence of a state of peace between Yemen and the U.S., as well as active efforts by Yemen to apprehend international and domestic outlaws residing in Yemen:

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Supreme Court Friday: Secret D.C. Circuit Court of Appeals proceedings (overruling lower court), allowing Obama DOD to rendition Guantanamo prisoner fearing torture to Algeria, can take effect before appeal is heard

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

Here’s the pitiless, anodyne legal formalism behind which a man’s life or liberty likely hangs in the balance:

FRIDAY, JULY 16, 2010



The application for stay presented to The Chief Justice and by him referred to the Court is denied.

Justice Ginsburg, with whom Justice Breyer and Justice Sotomayor join, dissenting.

I would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren, 553 U. S. 674 (2008).

The Supreme Court, of course, is on vacation until October, having left crucial questions unaddressed and unresolved in its last term, and left unreviewed crucial panel decisions of the lower D.C. Circuit, which directly impact the fate of Guantanamo prisoners. [Chief Justice Roberts, for example, who was responsible for hearing bin Mohammed’s plea to reinstate Judge Kessler’s injunction this week, will be lecturing about the American Bill of Rights – the Fifth Amendment, the Sixth Amendment, etc. – in Australia later this month…]

Farhi Saeed bin Mohammed, however, like every other Guantanamo inmate, is not on vacation. He won his habeas corpus appeal last November. [Translation: Independent federal District Judge Gladys Kessler, after hearing all the evidence the government could muster about his pre-capture activities, while detaining this man for seven years, using its many Pentagon and DOJ resources and outsourced torture-state contractors, determined in an adversarial proceeding with a pro bono civilian attorney acting on bin Mohammed’s behalf, that it was not “more likely than not” that bin Mohammed was a participant in the conflict authorized by the 2001 AUMF (against forces responsible for the 9/11 attacks), and therefore that he has been unlawfully detained by the American military under the law of armed conflict since February, 2002.]

As of yesterday, however, bin Mohammed was still a prisoner at Guantanamo, despite having made an emergency motion in May to effect his release to a nation other than Algeria, where he fears for his life at the hands of both the government and terrorist gangs in that nation.

Lyle Denniston at scotusblog.com, who has been all over this story (as has Josh Gerstein of Politico), puts the recent events that culminated in Friday evening’s ruling by a Supreme Court majority – consisting of Justices John Roberts, Jr., Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, Jr. – into plain English:

Lyle Denniston | Friday, July 16th, 2010 7:44 pm

UPDATE Saturday 5:50 a.m. Late Friday night, the Court, without noted dissent, refused to delay the transfer of a second Algerian, Abdul Aziz Naji. The order is here.


In the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantanamo Bay, the Court Friday evening cleared the way for the transfer of an Algerian detainee to his home country over his protest. The action divided the Court 5-3; the dissenters noted that the case involved “important questions” the Court has yet to answer. The Court’s action was not a final ruling on those questions; rather, it was a refusal to block a lower [D.C. Circuit panel] court order letting the government, not a judge, decide the transfer issue.

While the order would not prevent lawyers for the Algerian, Farhi Saeed Bin Mohammed, from going ahead with an appeal seeking to challenge his transfer, such an appeal very likely would lose all of its significance if the government opts to send him to Algeria promptly. Nothing in the order prevents that result, which probably would moot the controversy.

Mohammed is one of six Algerians now at Guantanamo, each of whom is trying to head off being sent to their homeland because each fears that he faces torture or death, either from the Algerian government or from a terrorist group operating in that country — a fear the U.S. government says is not well-founded.


But, since the Munaf decision was issued by the Court on June 12 two years ago, the D.C. Circuit Court has given it a wide interpretation, ruling that it bars any federal judge from “second-guessing” a decision by the Pentagon and State Departments that controls the ultimate fate of detainees who have been cleared by judges for release. In Mohammed’s case, for example, the Circuit Court relied upon only one Supreme Court precedent — Munaf – as it overturned a federal judge’s order barring his transfer to Algeria.


The Court has not taken any action on the merits of a detainee case since its Boumediene ruling.


District judges handling habeas cases from Guantanamo prisoners are left, for the time being, with only one option if they decide that a detainee is not being held legally: they can urge the government to use its best efforts to try to find a place to relocate that prisoner. That, in fact, is the way most release orders have been worded in the wake of the Circuit Court’s interpretation of the Munaf precedent.


The ruling that the Supreme Court refused to stay [Friday], pending its challenge on appeal, accepted the government’s word that it was more likely than not that a transferred detainee would not be subjected to torture, or worse. Different panels of the Circuit Court have made it clear that the government’s word on that issue is not to be subjected to rigorous testing by District judges in habeas cases.

This is probably a good place to point out that the autocratic-presidency-enamored D.C. Circuit Court, and many of its three-member panels, is an outlier of increasingly-obvious proportions on this and similar Constitutional questions. For example, just one week before the Supreme Court summarily dismissed bin Mohammed’s plea to temporarily prevent (pending appeal) his U.S. military captors from shipping him to Algeria, for fear of torture or worse, a Third Circuit Court of Appeals panel strongly repudiated the Obama DOJ’s similar effort to deport a foreign citizen living in New York to China, for fear of torture, citing the Convention against Torture:

Published: July 15, 2010

Saying that government lawyers let their zeal for victory in a deportation case outweigh their responsibility to be fair, a federal appeals court last week ordered the United States to provide a haven for a woman facing the likelihood of torture in China.


“It is disappointing, even shocking, that the government fails to acknowledge that the evidence is not only strongly in Kang’s favor, but, indeed, compels the conclusion that she will likely be tortured,” said the decision, issued by a three-judge panel of the United States Court of Appeals for the Third Circuit, which covers Delaware, New Jersey, Pennsylvania and the United States Virgin Islands.


The Third Circuit judges called the government’s position “inexplicable” and said both the board [the Board of Immigration Appeals which had overturned an immigration judge who granted Kang protection] and the government lawyers ignored overwhelming evidence.


“Instead, the government sought to characterize the facts in such a way so as to distract the court from the dire nature of Kang’s plight,” Judge Marjorie O. Rendell wrote. “While our adversarial system may permit such advocacy by private parties, when the United States appears before us, it is duty-bound to ‘cut square corners’ and seek justice rather than victory. We are distressed that it failed to do so.

[Tellingly, that proceeding and ruling was in the context of immigration law, to which the D.C. Circuit has been trying to reduce the fundamental, bedrock, Constitutionally-protected right of habeas corpus (the actual judicially-mandated release it encompasses, at least) for Guantanamo detainees, via Kiyemba I, II, & III (the Chinese Uighur cases forbidding their release into the U.S.), in order to try to write our independent Judicial Branch out of an “exclusive” province of the Executive and Congress.]

A similar “zeal for victory” has been in evidence in the Guantanamo case at issue here, the instant that Judge Gladys Kessler requested the presence of a State Department representative (Daniel Fried) in her court so that she could test the strength of the government’s assurances that Algeria will not harm bin Mohammed. Her order for Fried to appear was immediately appealed to the D.C. Circuit, a D.C. Circuit panel in turn immediately acted to prevent the hearing Kessler ordered, and then proceeded to order her to issue a final judgement without recourse to State Department witnesses. All, as Lyle Denniston noted, without benefit of full briefing or oral argument:

The case of Farhi Saeed bin Mohammed, proceeding largely in secret in lower courts, poses a major test of federal judges’ power to assert control over the legal fate of Guantanamo prisoners.

At its core, the case could test how the Supreme Court reconciles two opinions on detainee rights that it issued on the same day, June 12, 2008 — Boumediene v. Bush, and Munaf v. Geren.


The government pursued an emergency appeal of that order, as it did an earlier temporary order by Kessler. Each time, the Circuit Court summarily reversed the judge — that is, it acted without full briefing and oral argument.

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"Hear me now": THANK YOU, Senator Byrd, and Farewell

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

I do not pretend to be able to do justice to the 50-year career of United States Senator Robert C. Byrd of West Virginia – the good, the bad, or the ugly – having witnessed only a fraction of it from a distance. But Senator Byrd’s dedicated public service in and, especially, on behalf of the institution established to self-govern this nation, for almost a quarter of the time our Constitutional Republic has existed, speaks volumes on its own.

Note, though, how some of those who knew him best – those with whom he served – remember him:

[Senator Byrd] had no use for narrow partisanship that trades on attack and values only victory.


"I have lived with the weight of my own youthful mistakes my whole life, like a millstone around my neck," [Senator Byrd] wrote in 2008. "And I accept that those mistakes will forever be mentioned when people talk about me. I believe I have learned from those mistakes. I know I’ve tried very hard to do so."

Senator Kerry, yesterday, June 30, 2010

Though obviously a reference in part to his opposition to the 1964 Civil Rights Act, and his associated hostility to the rights of African-Americans as a young man, if Senator Byrd’s passionate opposition to the invasion of Iraq was in part a response to the lessons he learned from his earlier strong support for the Vietnam War, it appears those words written in 2008 honestly represented his deeds.

Monday, June 28, 2010:

Mr. CARDIN. […] Senator BYRD’s modest beginnings in the hard-scrabble coal fields of Appalachia are well known. After his mother died during the 1918 flu pandemic [when he was about a year old], Senator BYRD went to live with an aunt and uncle who adopted him and raised him in a house without running water or electricity. He pumped gas and butchered hogs. During World War II, he was a welder and built cargo ships in Baltimore and Tampa Bay. After the war, he successfully ran for the West Virginia House of Delegates and, 4 years later, the State’s senate, before entering Congress in 1953.


Senator Byrd married his high school sweetheart, Erma Ora James, shortly after they both graduated from Mark Twain High School–where he was valedictorian–in 1937. He was too poor to afford college right away and wouldn’t receive his degree from Marshall University until 60 years later–when he was 77. In between, he did something no other Member of Congress has ever done: he enrolled in law school–at American University–and in 10 years of part-time study while serving as a Member of Congress, he completed his law degree, which President John Kennedy presented to him. Senator BYRD was married to his beloved Erma for nearly 69 years, and was blessed with two daughters, six grandchildren, and seven great-grandchildren.


He steered the Panama Canal Treaty through the Senate and waged a lonely battle against the war in Iraq, leading an unsuccessful filibuster against the resolution granting President George W. Bush broad power to wage a preemptive war against Iraq. He claimed that his vote against the Iraq war resolution was the vote of which he was most proud [of] having cast over the course of his career. When U.S. military strikes on Iraq commenced on March 19, 2003, [Byrd] stated:

Today I weep for my country. I have watched the events of recent months with a heavy, heavy heart. No more is the image of America one of strong, yet benevolent peacekeeper. The image of America has changed. Around the globe, our friends mistrust us, our word is disputed, our intentions are questioned. Instead of reasoning with those with whom we disagree, we demand obedience or threaten recrimination.


Mr. CARPER. […] I was born in Beckley, WV, just about a dozen miles or so from a community called Sophia, which is where ROBERT and Erma BYRD once ran a little mom-and-pop supermarket back in the late 1930s, early 1940s. I think he was the butcher. He ran that supermarket and later on, I think, in World War II, he was a welder during the war. As we know, in the late 1940s he had the opportunity to run for the West Virginia Legislature and ran. He was a great fiddler and went around his community, his district, playing the fiddle. He always called himself a hillbilly.

Ironically, I was down in the central part of our State [Delaware] just about a month ago and had a chance to attend a picnic for senior citizens, a cookout. A lot of people were there. I was sitting at different tables and walking around. I was sitting at this one table, and I learned this lady sitting to my left was from West Virginia.

I said: Where are you from?

She said: Sophia.

I said: That’s right outside of Beckley, where I was born.

She said: Yes, I knew ROBERT and Erma BYRD when they ran that mom-and-pop supermarket.

I said: You’re kidding.

She said: No, I did.

I asked her to share some thoughts with me about it, and she did.

Two weeks later I was back in the Senate and Senator Byrd was coming in in a wheelchair. In the last part of his life he lost the ability to walk. He never lost his voice, never lost his mind either. But he came in, and I stopped to say hello to him, see how he was doing, and I said: Leader, I just met a woman over in Delaware the other day who knew you from your little supermarket in Sophia, WV.

I told him about it, and he smiled. He said: Do you remember her name? Do you remember her name?

Ironically, I could not remember it. But if I had, he would have. He was amazing.


More than anybody I know, for a guy who was born, orphaned in North Carolina as an infant, who was traded off by his mom in her last will and testament–she wanted him to be raised by her sister [per Senator Reed, actually his father’s sister] who lived in West Virginia, and her sister took this young man in. His name was not Robert Byrd. But she took in her nephew. She and her husband raised Robert Byrd in tough situations, hardscrabble situations, and he sort of raised himself by the bootstraps and worked hard all of his life to make something of his life and to serve as a model for us in the end, and a model for our country.


Mr. ROCKEFELLER. […] After his mother passed away, he was raised by his aunt and uncle, a coalminer he movingly called "the most remarkable man I have ever been privileged to know."


It was at Mark Twain High School where a lifetime of love first began for ROBERT C. BYRD and his future wife, Erma Ora James. Calling her the "wind beneath this byrd’s wings," as he put it, Senator Byrd was never shy to tell you that Erma–a beloved coal miner’s daughter herself–was the reason he reached all of his goals. He believed that with all of his heart. So from the fiddle-playing young man to a history-making American icon, she loved and supported him every step of the way until her passing in 2006.

I know and I observed maybe earlier than some that Senator Byrd lost just a bit when Erma died. Watching him hurting was painful. His wife died from the same disease my mother died from; that is, Alzheimer’s, and we talked about it, especially a few years ago when he was talking more frequently. I always felt bad that I could not give him comfort and that I could not say something to him that would relinquish his pain, which was evident and obvious–very obvious in privacy. But I could not do that because you cannot do that for diseases like that one. There were not words to describe the difficulty such a devastating loss can bring, and I commend my friend for continuing on so strongly–as he did–for so long.

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Obama DOJ heads to appeals court hearing Thursday to fight to maintain Congress’s (judge-defined-and-enjoined Bill of Attainder) ACORN funding ban

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link. On Friday, August 13, 2010 [“As Corrected” September 7, 2010 (see Appendix A)], the Second Circuit appellate panel of Roger J. Miner, José A. Cabranes, and Richard C. Wesley overturned Judge Nina Gershon’s findings below, by unanimously declaring that the Congressional singling-out of ACORN – on a regular annual basis, to bar it and its undefined “affiliates, subsidiaries, or allied organizations” even from consideration for federal funding programs – did not qualify as legislative “punishment” or an Unconstitutional Bill of Attainder. [The panel then “…remand[ed] for further proceedings as to the plaintiffs’ First Amendment and due process claims.”] A judgement with which the Harvard Law Review, for one, laudably disagreed, in this January, 2011 review of the ACORN case and Second Circuit opinion [HLR: “In holding that the denial of funds was not punitive in this case, the Second Circuit relied on Congress‘s implicit conclusion that ACORN had committed the acts of fraud and mismanagement of which it was accused [without formal indictment], a judgment Congress is not entitled to make.45 Extrapolating from past acts, the court also assumed that ACORN’s allegedly fraudulent conduct would continue, and that the instances of mismanagement could be imputed to ACORN’s various affiliates and subsidiaries,46 many of which carried out tasks wholly unrelated to the charges of fraud. […] Had Congress not determined that ACORN was guilty of fraud and misconduct, there would have been no reason to bar the organization from receiving federal funding.55 This species of legislative action is exactly the evil that the Bill of Attainder Clause aims to prevent: congressional pandering to popular whims and the subversion of separation of powers for the sake of political expediency.” (emphasis added)]. Yet, without explanation, on November 23, 2010, the Second Circuit as a whole declined ACORN’s petition for an en banc review of the panel decision.  Subsequently, on February 22, 2011, ACORN, working with the Center for Constitutional Rights, filed a petition for a writ of certiorari of the Second Circuit panel decision with the Supreme Court. But the Supreme Court couldn’t be bothered to address this rare and important Bill of Attainder case, and, on June 20, 2011 (after twice granting the government month-long extensions of time in which to file its response to ACORN’s petition), refused to hear or review ACORN’s case, thus rebuffing ACORN’s plea for justice in the American courts, and dismissing out-of-hand Judge Gershon’s two careful, thoughtful rulings. Like the Supreme Court, Congress didn’t convene, or invite ACORN to, even a single public hearing to allow the ACORN organization to respond to the wild and highly-politicized accusations that Members of Congress were making against it, before depriving ACORN, and ACORN alone (at least until the next animosity-fueled passionate impulse sweeps through Congress and a cowed presidency, this time with advance Judicial Branch blessing), of the opportunity to even be considered for taxpayer-financed federal funding opportunities for which it might like – or have liked – to apply.

Specifically, government counsel from the Obama DOJ, and ACORN and its attorneys from the Center for Constitutional Rights (CCR), head to:

United States Court of Appeals for the Second Circuit [in New York City]
[Ceremonial Courtroom (9th Floor)]

on Thursday, June 24, 2010 (sometime late in the morning) in

ACORN, et al
United States of America, et al

Docket numbers 09-5172-cv and 10-0992-cv


Roger J. Miner, Senior Circuit Judge
José A. Cabranes, Circuit Judge
Richard C. Wesley, Circuit Judge

Background of the case, from Federal Judge Nina Gershon’s final ruling on March 10, 2010:

While there are minor disputes about factual matters, the parties agree that there are no material issues of fact that prevent resolution of this case without a trial.


ACORN’s critics consider it responsible for fraud, tax evasion, and election law violations, and members of Congress have argued that precluding ACORN from federal funding is necessary to protect taxpayer money. ACORN, by contrast, while acknowledging that it has made mistakes, characterizes itself as an organization dedicated to helping the poor and argues that it has been the object of a partisan attack against its mission. This case does not involve resolution of these contrasting views. It concerns only the means Congress may use to effect its goals. Nor does this case depend upon whether Congress has the right to protect the public treasury from fraud, waste, and abuse; it unquestionably does. The question here is only whether Congress has effectuated its goals by legislatively determining ACORN’s guilt and imposing punishment on ACORN in violation of the Constitution’s Bill of Attainder Clause.


Section 163 [of the Continuing Resolution Congress passed last fall to temporarily fund government agencies because of its failure to pass the appropriations bills for FY 2010 before the year began on October 1, 2009] provides that:

None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.

The Continuing Resolution containing Section 163 went into effect on October 1, 2009, and was extended on October 31, 2009 to December 18, 2009.


Plaintiffs [ACORN] filed suit in this court on November 12, 2009, arguing that Section 163 is an unconstitutional bill of attainder and that it violates their rights under both the First Amendment and the Due Process Clause. In their initial complaint, plaintiffs alleged that, as a direct consequence of Section 163, agencies have refused to review their grant applications; that grants they were told they would receive have been rescinded; that previously-awarded grants have not been renewed; and that HUD had refused to pay on its contractual obligations even for work already performed. Plaintiffs also alleged that other organizations, such as private corporations and foundations, have cut ties to them as a result of Section 163.


Plaintiffs sought emergency relief on November 13, 2009, arguing that Section 163 was an unconstitutional bill of attainder and that it violated their rights under both the First Amendment and the Due Process Clause. On December 11, 2009, I preliminarily enjoined then-defendants the United States, Peter Orszag, in his official role as Director of OMB, Shaun Donovan, in his official role as Secretary of HUD, and Timothy Geithner, in his official role as Secretary of the Treasury, from enforcing the provision, on the grounds that plaintiffs had shown irreparable harm and a likelihood of success on the merits of their claim that Section 163 is a bill of attainder.[Footnote 3] ACORN I, 662 F. Supp. 2d at 299-300.

[Footnote 3:] The government appealed that decision on December 16, 2009, but has not moved in the Second Circuit to expedite the appeal. By letter dated February 12, 2010, the government asked for a due date of May 13, 2010 for its opening brief in the Court of Appeals, which request was “so ordered” on February 17, 2010.

On December 16, 2009, President Obama signed into law the 2010 Consolidated Appropriations Act. Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034 (2009). This Act, described by the government as a “minibus” Act, is a consolidation of various appropriations acts for Fiscal Year 2010.

Several of the consolidated acts contain provisions prohibiting the award of funding to ACORN.


Following the enactment of the minibus bill, Congress passed and the President signed into law the final outstanding appropriations bill, the Department of Defense Appropriations Act of 2010, which prohibits distribution of funds under the act to ACORN or “its subsidiaries.” Department of Defense Appropriations Act, Pub. L. No. 111-118, Section 8123, 123 Stat. 3409, 3458 (2009). Once this final appropriations act was passed, the Continuing Resolution, and thus Section 163 included in it, expired.

On consent of the government, plaintiffs filed a second amended complaint including all five Fiscal Year 2010 appropriations provisions that prohibit funding to ACORN as well as Section 163. Plaintiffs named three new defendants: Lisa P. Jackson, Administrator of the Environmental Protection Agency (“EPA”); Gary Locke, Secretary of Commerce; and Robert Gates, Secretary of Defense.

Plaintiffs and defendants agree that, for the purposes of the bill of attainder argument, the challenged provisions should be analyzed as one statute. Although several of the full year appropriations acts use language slightly different from that of Section 163, neither plaintiffs nor defendants have suggested that any of these differences is significant, either practically or legally.


Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum [requested by HUD, and issued privately on October 23, 2009 and publicly in late November, 2009] has paid, or has agreed to pay, for work already performed under existing contracts. […]

The defendants recognize that ACORN has been singled out by Congress and that there has been no judicial trial at which ACORN has been found guilty and deserving of punishment, but argue that the challenged legislation is not a bill of attainder because it does not impose punishment. The government relies heavily on Section 535 of Division B of the 2010 Consolidated Appropriations Act, which directs the United States Government Accountability Office (“GAO”) to “conduct a review and audit of the Federal funds received by [ACORN] or any subsidiary or affiliate of ACORN” to determine

(1)whether any Federal funds were misused and, if so, the total amount of Federal funds involved and how such funds were misused; (2) what steps, if any, have been taken to recover any Federal funds that were misused; (3) what steps should be taken to prevent the misuse of any Federal funds; and (4) whether all necessary steps have been taken to prevent the misuse of any Federal funds.

Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010, Pub. L. No. 111-117, Div. B, Section 535, 123 Stat. 3034, 3157-58 (2009). Section 535 directs that within 180 days of enactment of the Act, the Comptroller General “shall submit to Congress a report on the results of the audit…, along with recommendations for Federal agency reforms.” Id. Plaintiffs do not challenge the Section 535 provision as a bill of attainder, but the government relies on the investigation to argue that Congress had a non-punitive reason for passing the challenged provisions.

The mandated GAO review and audit of ACORN

The said GAO review and audit was issued in preliminary form last week:

The Consolidated Appropriations Act, 2010, directed us to issue a report on ACORN within 180 days (by June 14, 2010).3 We also received three request letters from a total of 23 members of Congress asking that we provide information on federal funding provided to ACORN and oversight of the use of this funding.


Given that our analysis related to these objectives is ongoing, the information in this report is preliminary and subject to change. We plan to issue a report later this year with our final results related to ACORN and potentially related organizations.


Scope and Methodology

To identify funding awarded to ACORN or potentially related organizations and its purpose, we asked 31 federal agencies to identify funding (grants, contracts, or cooperative agreements) awarded to ACORN or potentially related organizations from fiscal years 2005 through 2009 and, to the extent possible, any funding that may have gone to ACORN or a potentially related organization as a subaward (subgrant or subcontract) during this period.8 We requested information on federal funding that was awarded to ACORN or potentially related organizations, regardless of whether the funding had been dispersed to or expended by the organizations.


To identify the monitoring processes for funds awarded to ACORN or potentially related organizations, we obtained and compared the agencies’ monitoring protocols with documentation of the steps agencies took to monitor these awards.10 We interviewed and obtained documentation from grant program managers and staff from six of the nine agencies that reported providing funding to organizations on the CRS [Congressional Research Service] list: NeighborWorks, the Election Assistance Commission (EAC), the Corporation for Public Broadcasting (CPB), the Environmental Protection Agency (EPA), the Department of the Treasury (Treasury), and the National Endowment for the Arts (NEA).11 We discussed their monitoring processes and how they decided which mechanisms to apply for particular awards. We also asked grant program managers and staff to identify any problems that agencies found through the oversight process and explain how these were resolved. […]

For our third objective, we reviewed information from DOJ—including the Federal Bureau of Investigation (FBI) and DOJ litigating divisions12—as well as the 31 agencies within the scope of our review and the investigative components of the IGs of those 31 agencies to identify any investigations or prosecutions they have conducted of ACORN or potentially related organizations since fiscal year 2005.


We conducted this performance audit from December 2009 through June 2010 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Results in Brief

Nine agencies—HUD, DHS, DOJ, EAC, NeighborWorks, CPB, EPA, Treasury, and NEA—identified approximately $37.5 million in direct federal grants and at least $2.9 million in subawards (i.e., grants and contracts awarded by federal grantees) to ACORN or potentially related organizations, primarily for housing-related purposes during fiscal years 2005 through 2009. […]

Agencies employed several mechanisms—ranging from reviews of progress reports submitted by grant recipients to on-site monitoring—to oversee the eight direct grants for which we received documentation on their oversight process; agencies generally did not identify any problems with seven of the eight grants.15 Agency officials said that they considered the grant amount and availability of personnel and resources as factors in deciding what type of monitoring to conduct. Agency monitoring efforts identified and resolved a problem with one of eight direct grants to ACORN or potentially related organizations for which we obtained information on oversight. Specifically, NeighborWorks determined that ACORN Housing Corporation had not provided a description of what it planned to accomplish under the grant, as required. After NeighborWorks brought this to the attention of ACORN Housing Corporation officials, these officials subsequently provided the documentation.


In addition to their routine grant oversight, all six of the agencies included in our review that have provided funding directly to ACORN or potentially related organizations since fiscal year 2005 have initiated either IG or internal reviews of these organizations’ use of federal funds in response to congressional requests or at the agency’s own initiative. The DOJ IG completed its review in November 2009 and the CPB, DHS, EAC, and HUD IG reviews, as well as the NeighborWorks review, were ongoing as of May 24, 2010. Table 4 includes the information we obtained from these agencies regarding their reviews.

Distinct from routine grant oversight and monitoring efforts, which are intended to assess whether grantees are meeting the purposes of the grant program and spending funds appropriately, federal agencies may also conduct investigations of an organization or an employee of an organization to determine whether the organization or employee violated federal law. In the closed matters, closed investigations, and prosecutions since fiscal year 2005 provided by the FEC, the FBI, and EOUSA, ACORN and four potentially related organizations (Project Vote, Citizens Consulting, Inc., Citizen Services Inc., and SEIU Local 100) or their employees were involved to varying degrees in the investigated allegations, as detailed in the tables below. The allegations involved generally related to voter registration fraud and election fraud. IGs can also conduct investigations to determine whether an organization or individual violated federal law. However, of the 31 IGs that we contacted, 29 stated that they had no ongoing or closed investigations of ACORN or potentially related organizations since fiscal year 2005.26 Officials from TIGTA stated that they could not comment on whether their office had conducted any investigations of any ACORN or potentially related organizations since 2005 because section 6103 of the Internal Revenue Code prohibits the disclosure of taxpayer information by the Internal Revenue Service, except in specifically enumerated circumstances.27 The HUD IG’s Office of Investigations declined to comment on whether it had any open or closed investigations involving ACORN or potentially related organizations.


The FEC identified four closed matters that involved allegations that ACORN or potentially related organizations violated the Federal Election Campaign Act.28 For each of these matters, the FEC determined that there was no evidence that such violations occurred. These matters are summarized in table 5.


EOUSA identified six closed cases that involved employees of ACORN. The charges filed did not allege wrongdoing by ACORN or any potentially related organizations. The six cases generally involved alleged voter registration fraud; all but one of these cases resulted in a guilty plea by the defendant. These cases are summarized in table 7.


Five of the federal agencies—DOJ, HUD, NEA, Treasury and NeighborWorks—did not provide formal written comments to be included in this report, but instead provided technical comments, which we incorporated as appropriate. In an email received June 8, 2010, the EPA liaison stated that EPA had no comments on the report and on June 9, 2010, CPB and DHS’s liaisons said that their agencies had no comments on the report. In an email received June 9, 2010, EAC’s Director indicated that the draft report accurately reflected the agency’s grants to Project Vote and their management, and had no further comments.


According to ACORN and Project vote officials, the organizations provided information to local election officials that helped initiate prosecutions against their employees who may have been involved in voter registration fraud. We are working to verify this information and will include the results of our efforts in our final report on ACORN to be issued later this year. ACORN and Project Vote officials also stated that they have a comprehensive quality control system in place designed to identify voter registration fraud.

Yup, sounds like a real “federal case” outlined there, all right…

No wonder the House and Senate jumped all over it last year, instead of focusing their collective attention on or meaningfully tackling egregious and ongoing matters like this, which was being publicly reported last November just as the screws were being put to ACORN:

“U.S. taxpayer dollars are feeding a protection racket in Afghanistan that would make Tony Soprano proud,” [Representative John] Tierney said, referring to the fictional mob leader in the TV series “The Sopranos.”

Military authorities in Afghanistan have only been concerned that the supplies reach their destination and the warnings they received from the trucking companies about extortion payments “fell on deaf ears,” said Tierney, who chairs the House Oversight and Government Reform national security subcommittee.

Army Lt. Gen. William Phillips, a senior Pentagon acquisition official, said he was unaware of the allegations that U.S. tax dollars may be indirectly bankrolling the insurgency and promoting instability in Afghanistan.


Members of the subcommittee weren’t impressed. “Warlord Inc.,” a report released Monday by the panel’s Democratic staff, noted that a military task force has been examining allegations since last year of extortion and corruption stemming from the contract. But the report paints the inquiry as slow moving and unfocused.

“There seems to be very little indication the Department of Defense is doing anything,” said Rep. Jeff Flake of Arizona, the subcommittee’s top Republican.


Nearly $700,000 per day is spent on average moving supplies throughout Afghanistan, Phillips said.

– Richard Lardner, Associated Press, June 22, 2010

The GAO report, moreover, is only the latest in a string of independent investigations that have cleared ACORN of wrongdoing since the middle of last year. ACORN itself hired a former Massachusetts Attorney General to do an internal investigation, and the District Attorney for Kings County, New York spent five months looking into ACORN operations after Congressionally-trumpeted doctored hidden-camera videos surfaced last September. The Congressional Research Service also investigated, and was unable to document any wrongdoing on ACORN’s part in a report issued to little notice during the holiday season last December.

Read the rest of this entry »

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"He Was Tortured, But He Can't Sue": David Cole's utterly-damning account of our Judicial Branch's denial of justice for Canadian Maher Arar

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

An invaluable summary and incisive account of the Maher Arar case was published Tuesday by Arar Attorney David Cole on the blog of the New York Review of Books, in response to the United States Supreme Court’s refusal to even hear the Arar appeal. Arar’s appeal was an ultimately-unsuccessful six-year-long effort to simply be heard in an American courtroom on the merits of his rendition-to-torture allegations against high public officials in our nation’s Executive Branch of government.

The Supreme Court’s refusal to even hear Arar’s case may have resulted from Justice Sotomayor’s recusal from the debate and vote on hearing his appeal – a recusal apparently made just because Sotomayor, while sitting on the Second Circuit Court of Appeals (whose decision Arar was appealing to the Supreme Court), publicly did no more than to participate in the court’s en banc Arar appeal oral argument (having left the court months before the 2nd Circuit’s November, 2009 Arar decision was rendered). [The December, 2008 en banc Arar oral argument in the Second Circuit, which lasted for more than two hours, in which Sotomayor participated by video feed, may be viewed in its entirety here.]

The short version, from Cole’s account, of how the incumbent American President acts to "faithfully execute the Office of President" and "to the best of [his] ability, preserve, protect, and defend the Constitution" – under the Presidential oath of office Article II, Section One, Clause Eight of our Constitution demands:

In President Obama’s May 2009 speech on national security and American values, he opposed a commission to investigate torture by arguing that there were proceedings in the courts that could provide accountability. Yet in the Arar case—as in every other civil case that has sought accountability for torture—the Obama administration argued that the courts were not an appropriate forum. To the Obama administration, defending government officials from suit, regardless of the gravity of the allegations, is evidently more important than holding individuals responsible for complicity in torture.

As to the torture claims of Syrian-born Canadian resident and citizen, Maher Arar, Cole elaborates:

[…] When they finally permitted him to see a lawyer, on a Saturday ten days into his detention, the government hastily scheduled an extraordinary hearing for the next night—Sunday evening—and only "notified" Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 a.m. Monday.

When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces.

Arar was beaten and tortured while Syrian officials asked him questions virtually identical to those US officials had asked him in New York. He was locked up for a year without charges and in complete isolation, most of the time in a cell the size of a grave. After a year, Syria released him, finding no evidence that he had done anything wrong.


In addition, the United States did not dispute that if, as was his legal right, Arar had been able to get his claim before a court while he was being detained in the United States—before he was sent to Syria—the federal courts would have entertained his case and could have stopped his rendition. Congress has expressly authorized the courts to review immigration decisions and to bar removal of foreign nationals to any country where they face a risk of torture. Knowing that, US officials made sure Arar could not get to court—denying his initial requests for a lawyer, lying to him and his lawyer, and then flying him out of the country in the dead of night before he or his lawyer could file anything. Arar therefore sought the only remedy left—damages for his injuries. The Second Circuit never explained why Arar’s case, which indisputably could have been adjudicated had he been able to seek review before he was removed, suddenly became too "sensitive" once Arar sought damages for injuries incurred as a result of that removal.

Absent enforcement, "the law" is a cruel joke…

Bush administration officials sent Arar to be tortured, and Bush administration lawyers initially sought to have his damages suit dismissed. But nothing changed when President Obama took office. The Obama administration [through its Deputy Solicitor General] aggressively defended the Second Circuit’s decision to throw Arar’s case out of court. It opened its brief to the Supreme Court with a paragraph reiterating that torture is never permissible, but then went on to argue at length that federal officials accused of torture should not be held accountable.

– Attorney David Cole, June 15, 2010

Be sure to read the whole thing.

Yet even while powerful abusers on the public payroll egregiously skate from the consequences of their actions, the powerless among us continue to be persecuted by government actors, on multiple fronts.

ACORN Persecution

From the latest in a series of at least four independent investigations undertaken and concluded on the same subject since the middle of last year, none of which have unearthed any wrongdoing:

When a duo of right-wing provocateurs posing as a pimp and prostitute released selectively-edited videos trying to impugn the community activist group ACORN, both Democrats and Republicans condemned the organization. Congress then voted to cut off federal funding for the group (a decision that was later ruled unconstitutional [as a Bill of Attainder]). Following negative press and Congress’ vote, ACORN effectively disbanded Apr. 1 and reorganized under new names.

But a just-issued report by the Government Accountability Office that reviewed ACORN’s federal funding at the behest of Congress found little grist for the mill for politicians or right-wing bloggers looking to bash the now-defunct advocacy group for the poor.

The 38-page report surveyed over 31 federal agencies, probing how ACORN used federal funds and whether adequate controls on spending existed.

The report found no evidence of fraud, lax oversight or misuse of federal funds.

By at least March 12th of this year, after Federal District Judge Nina Gershon had issued her permanent injunction striking down the unConstitutional Congressional ban on consideration of federal funding applications from ACORN – a ruling now under appeal by the Obama administration in the Second Circuit – that was already quite clear:

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