The Jury Talks Back


My favorite item from the PotUS’s proposal

Filed under: Uncategorized — Scott Jacobs @ 1:15 pm

The very last bullet-point on the page:

Requires large employers to cover their employees and individuals who can afford it to buy insurance so everyone shares in the responsibility of reform. Under the President’s plan, large businesses – those with more than 50 workers – will be required to offer their workers coverage or pay a fee to help cover the cost of making coverage affordable in the exchange. This will ensure that workers in firms not offering coverage will have affordable coverage options for themselves and their families.  Individuals who can afford it will have a responsibility to purchase coverage – but there will be a “hardship exemption” for those who cannot.

Might I say, with all due respect, “Fuck you, Mr President”.

To start with, 50 employees is nothing.  It certainly is not what I would call “the starting of large”.  One restaurant could easily top 50 employees.

More importantly, if the government thinks it will be forcing me to buy health insurance, the government can go fuck right off and die.

I look forward to them trying to enforce their will in this matter.


DOJ Clears Yoo and Bybee in “Torture” Memo Investigation — While Harshly Criticizing Professionalism of Internal Witch-Hunt Conducted Against Them

Filed under: Uncategorized — WLS @ 3:43 am

Posted by Shipwreckedcrew:

I’m pretty confident that you will not see a comprehensive analysis of the decision by Associate Deputy Attorney General David Margolis abrogating the proposed findings of intentional misconduct made by the Office of Professional Responsibility against former DOJ Office of Legal Counsel Members John Yoo and Jay Bybee.

It should tell you all you need to know about the Obama/Holder DOJ that this hugely important document was part of a Friday night document dump in order to bury it.   My hyperlinking is not any better than the last time I posted here, but here is the URL for the decision:

Associate DAG Margolis has issued a 56 page scathing rebuke of the Office of Professional Responsibility’s unprofessional witch-hunt of Yoo and Bybee related to their drafting of legal memoranda establishing the legal framework for the application of enhanced interrogation techniques by the CIA and Military Intelligence specialists.

It is beyond the format of one blog post to comprehensively summarize the findings of Margolis.  So I want to emphasize here a couple things about the process — the process that involved a review by Margolis of the proposed findings of OPR, and some of his criticisms of the bastardized procedures followed by OPR in a clearly biased and partisan attempt to “get” Yoo and Bybee.

First, a few important facts about David Margolis.  He occupies the position of Associate Deputy Attorney General.  This is the senior most career employee in DOJ.  I believe only two people appear in the organizational chart above him — the Attorney General and  Deputy Attorney General, both of whom are political appointees of the President.

Margolis has been with DOJ for more than 40 years, serving under 16 different Attorney Generals going back to the Johnson Administration.  He has been the Associate Deputy Attorney General for many many years — I’m not certain how many — and one of his principle responsibilities for many years in that position is to review proposed Final Reports of the Office of Professional Responsibility (OPR) regarding investigations into allegations of professional misconduct by DOJ attorneys.

The way the process works is that OPR conducts an investigation into allegations of professional misconduct, and drafts a report detailing its findings.  That report is presented to the subject of the investigation, who at that point has the right under DOJ policy to make objections to the reports findings and/or conclusions.  OPR can chose to modify its final report based on such objections, or not.  Consideration and resolution of any such objections not corrected by OPR is made by Margolis in his capacity as Associate Deputy AG, and his decision constitutes the official DOJ determination as to whether the findings of misconduct are to be adopted by the Department as its official findings in the matter.

So, the review that Margolis undertook following the issuance on July 29, 2009 by OPR of its Final Report on Yoo and Bybee followed the normal procedures employed by DOJ in reviewing and considering allegations of official misconduct.  As noted by Margolis in numerous places within his 56 page decision, his review of OPR’s findings might be the only part of the process that followed the normal procedures.

Margolis begins his critical review of OPR’s handling of this matter by considering what OPR proposed doing even prior to the matter being referred to him for review — on December 23, 2008, following the election of Obama, OPR rushed t0 c0mplete its 191 page first draft of its report, and advised then AG Mukasey and Dep. AG Filip of its intention to release that draft to the public on January 12, 2009, without giving Yoo and Bybee any opportunity to review and raise objections to the draft, and giving Mukasey and Filip only until January 2, 2009, to review and comment.

On Dec. 31, 2008, Mukasey and Filip met with OPR staff  and provided a limited substantive review invited by OPR on December 23, 2008, but also pointed out that a comprehensive review of the draft was impossible in the time period suggested for OPR’s public release given the complexity and length of the report, and questioned the propriety of a public release of the report prior to the subjects being given an opportunity to reveiw, object, and have their objections considered consistent with DOJ and OPR policy.  Subsequent to the December 31 meeting, and in light of the procedural and substantive objections raised by Mukasey and Filip, OPR determined that it “report will not be finalized before the end of the current Administration,” and the draft report would not be made public as previously suggested.

It was only by pulling back from the rush to publish the draft report that substantive criticisms of OPR’s work could be made by AG Mukasey, Dep. AG Filip, and OLC.  As a result of these substantive criticisms, OPR issued a second draft report of its findings.  Margolis’ opinion finds significant flaws in this Second Draft for many of the same reasons he found flaws in the first draft — principally the failure by OPR to apply OPR’s own standard analytical framework in reaching its conclusion whether professional misconduct was involved in the work of Yoo and Bybee.  More on that below.

But, unlike the first draft, the second draft was provided to Yoo and Bybee, and they were invited to respond to the findings and conclusions of the second draft within 60 days.  This was consistent with OPR’s normal practice in these cases — unlike the way it proposed publishing the first draft with no opportunity given to Yoo and Bybee to review.

Yoo and Bybee submitted timely comments and objections to the second draft on May 4, 2009.  Both raised as a primary complaint the fact that OPR’s finding of professional misconduct was made in violation of OPR’s own formal Policies and Procedures setting forth the standards for reaching such a conclusion.

The gist of this complaint, which Margolis in his opinion agrees with Yoo and Bybee, is that OPR’s own standards require that in order for there to be a finding of intentional misconduct, OPR must find that the attorney engaged in conduct with the purpose of obtaining a result that the professional standard or obligation unambiguously prohibits.

Such a finding requires a showing by OPR both that an unambiguous standard of conduct or responsibility exists, and that the attorney purposely violated a standard which he knew unambiguously applied.  The Second Draft made no mention of the application of this analytical framework in reviewing the drafting of the memos by Yoo and Bybee as an instance of intentional misconduct.

On July 29, 2009, OPR issued its Final Report.  Margolis notes that for the first time the Final Report seemed to address the need to identify an unambiguous standard that applied unambiguously, and evidence that Yoo and Bybee purposely violated that standard.  But rather than refer to an established standard based on published Rules of Professional Conduct or Rules of Ethics, OPR “gleaned a duty to exercise independent legal judgment and render thorough, objective, and candid legal service” from a variety of sources, both published and unpublished.  As noted caustically by Margolis:

In addition to gleaning its applied standard from the listed sources, OPR also delcared:  “Moreover, we looked at the circumstances surrounding these particular requests for legal advice, to assess whether the requirements of the applicable professional rules and Department regulations were met.  In doing so, we began with the premise that “the right to be free from offical torture is fundamental and universal, a right deserving the highest status under international law, a norm of jus cogens…. We thus determined that Department Attorneys considering the possible abrogation or derogation of a jus congens norm such as the prohibition against torture must be held to the highest standards of professional conduct.”

OPR may well have defined the standard to which the Department may decide (or perhaps even has decided) to hold OLC attorneys who author opinions about important matters, but the pertinent question is whether this standard is properly applied to determine whether OLC attorneys complied with the standards imposed on them by Rules of Professional Conduct.  If OPR has failed to identify properly a “known, unambiguous obligation imposed by law, rule of professional conduct, or Department rule or policy,” or has failed to establish that the obligation unambiguously  applied to  the attorneys’ conduct, then its misconduct analysis fails on that basis.

In other words, OPR simply made up a standard high enough that would warrant a finding of intentional misconduct by Yoo and Bybee even though OPR could point to no source that established such an unambiguous standard applied unambiguously to the work of Yoo and Bybee at the time they drafted the memos in question.   OPR ignored its own analytical framework in determining whether such a standard existed, and opted to include a “politically correct” view of the question in place of such an existing standard.

The “reverse engineering” of this “standard” into the July 29, 2009 Final Draft only after objections were raised to the absence of any such analytical framework in the first or second drafts which OPR had wanted to publish, struck Margolis as the exact type of “results-oriented” legal reasoning that OPR accused Yoo and Bybee of engaging in when they drafted the memos authorizing CIA and military personnel to use “enhanced interrogation techniques.”   Pretty much a “pot calling the kettle black” kind of thing.

The final upshot of the Margolis decision is that the OPR investigation and analysis is fatally flawed by its failure to establish that Yoo and Bybee intentionally violated a known unambiguous standard of professional conduct, due to the fact that OPR failed to even establish that such an unambiguous standard existed with respect to the legal analysis they offered in their memos.  As a result, DOJ rejects the Final Report of OPR on the issue of Yoo and Bybee, and the matter is now closed.

Margolis’ decision is, more than anything, a stinging rebuke to OPR for its sloppy, uneven, and likely partisan effort to hound Yoo and Bybee because OPR’s investigators disagreed on a policy basis with the substance of the memos.

I expect that this blog post might be the only place you find that being pointed out.

I’ll try to post more on this subject when I have more time to thoroughly review the Margolis decision.



Illinois Supreme Court to rule today

Filed under: Uncategorized — Scott Jacobs @ 6:25 am

Today is the day we find out if that feckless pile of shit George Ryan gets to collect about $5,000 a month in pension benefits.  The argument is that he should get to keep the benefits he earned while serving in government positions before becoming the Illinois Secretary of State (and Governor – time that is piled under a lengthy investigation into his time as a public official.

I’m not going to be home before 5pm today, so I’m going to miss the announcement, but I suspect he’s going to get to keep his money…

If it were up to me, he wouldn’t get a God Damn Dime.  Fuck you, George.  You used your position to line your pockets, you should have saved the graft money more carefully.


It makes sense to me now

Filed under: Uncategorized — Scott Jacobs @ 6:41 am

Now I understand why Gates was kept by the Obama Administration as Secretary of Defense…

It’s because he’s just as much of a pussy as the rest of those feckless morons.

“We must still try and find a peaceful way to resolve this issue. The only path that is left to us at this point, it seems to me, is that pressure track but it will require all of the international community to work together,” Gates said at a joint news conference with French Defense Minister Herve Morin.

Well then we’re just fucked then, aren’t we.  If nothing else, there is no way the UN’ Security Council will ever allow “Serious Sanctions” (or whatever the fuck they are calling their latest pansyfied attempt at talking down Iran).  How do I know that?

Because I can God Damn read.

An independent survey of Chinese-language media for The Sunday Times has found army and navy officers predicting a military showdown and political leaders calling for China to sell more arms to America’s foes. The trigger for their fury was Obama’s decision to sell $6.4 billion (£4 billion) worth of weapons to Taiwan, the thriving democratic island that has ruled itself since 1949.

“We should retaliate with an eye for an eye and sell arms to Iran, North Korea, Syria, Cuba and Venezuela,” declared Liu Menxiong, a member of the Chinese people’s political consultative conference.

Yeah, those are totally the sort of people who want to work with us.  For Christ’s sake, they are talking about selling WEAPONS to IRAN!  Why would anyone but a brain-dead chipmunk think that such a place would agree to do anything to punish Iran?

He added: “We have nothing to be afraid of. The North Koreans have stood up to America and has anything happened to them? No. Iran stands up to America and does disaster befall it? No.”

Yeah, there’s the problem.  When all you do is talk, extend deadlines and ignore stated consequences, this is what happens – people and countries start to figure out that they can do whatever they want and we won’t (due to lack of will and/or anything resembling leadership) do anything about it.

“This time China must punish the US,” said Major-General Yang Yi, a naval officer. “We must make them hurt.” A major-general in the People’s Liberation Army (PLA), Luo Yuan, told a television audience that more missiles would be deployed against Taiwan. And a PLA strategist, Colonel Meng Xianging, said China would “qualitatively upgrade” its military over the next 10 years to force a showdown “when we’re strong enough for a hand-to-hand fight with the US”.

Awesome.  Because what we really need (ignoring the fact that we have troops committed in the Middle East) is a shooting war with a country with probably a billion potential foot soldiers.  Hell, at that point you don’t even need to teach them to reload, you just send wave after wave and eventually you get through.

This country is screwed because we have in charge a group of people who don’t understand that no, talking doesn’t always work.  In fact, it never works if you don’t show you both have the ability to use force, and the willingness to use it.  Why would they listen?  It isn’t like you could/would do anything about it, so just do your own thing, right?

We are screwed, and because we are screwed, numerous other countries are screwed as well.  With a Chinese military nearing parity with the US, what do you think of Taiwan’s continued “freedom”?  With a nuclear-capable Iran, what think you of the odds that Israel doesn’t risk disaster?

This is the end result of having lightweights and incompetents running foreign policy.  We got a year off, as everyone looked at us and gauged our reactions.  This year will see serious pushing back against our “will” (such as it is), and either late this year or by midddle of next year (at the latest), we’ll see something serious.  Some sort of all-or-nothing situation where only someone with a spine and the will/desire to lead can have any good impact.

We don’t have anyone like that in charge, and as a result, we are screwed.  So very screwed.

h/t to Drudge for the first link

h/t to for the second


A (Hopefully) Provocative Question

Filed under: Uncategorized — Leviticus @ 9:54 pm

Regarding the recent Supreme Court ruling which classifies as unconstitutional previous restrictions on the donation of money to political campaigns/causes:

Assume the following set of premises:

1) The donation of money to political causes may be classified as a manifestation of the right to free speech (per Supreme Court precedent, apparently).

2) It is unconstitutional to restrict free speech.

3) The government is constitutionally empowered to tax its citizens.

4) To take money from someone is to restrict their ability to donate that money to a cause (political or not).

5) To tax someone is to take money from them.


Conclusion: taxation is unconstitutional, as a restriction on free speech.

Could someone point out the flaw in this reasoning? I mean, I’m certainly willing to accept that there is one, but I’d like someone to point out which of the assumptions I’ve made is incorrectly worded, or unwarranted (per stare decisis), or whatever.

For my part – insofar as both the power of Congress to tax and the right to free speech are expressly delineated in the Constitution – I’m inclined to think that the treatment of monetary donation as a form of free speech is bullshit, especially for anyone who argues that we ought to try to discern the intent of the Framers in our judicial decisions. I’m inclined to think that it was an ill-considered decision designed to complement corporate personhood, and nothing more.

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