Archive for the ‘Congress’ Category

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By Lawrence E. Rafferty, (rafflaw) Weekend Blogger

We have all heard of the so-called War on Drugs and the recently maligned War on Poverty, but I submit that the real war we should be worried about is the War on the Poor of this country.  The War on Drugs has not done much to stop the use of illegal drugs and the recent legalization of the sale of marijuana in Colorado may be a small step in the direction of ending the War on Drugs which has only succeeded in jailing thousands on minor drug offenses.  The African-American community has been especially hard hit by this failed attempt to end the use of illegal substances.

However, the War on the Poor is in full swing and seems to be succeeding.  One only has to look at the Farm Bill which is set to cut the SNAP program by anywhere between the $4 Billion in the Senate version and the $40 Billion in the House version.  At a time when this same Congress is refusing to extend unemployment compensation, they are attempting a monumental double whammy by cutting the ability of the needy to survive by cutting Food Stamps.  (more…)

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Last available picture of David from 2012

Last available picture of David from 2012

It is with the greatest personal sadness that I have to report the death of a cherished member of our blog family. David Blair Drumm passed away on December 18, 2013 in Austin, Texas. David was there at the very beginning of this blog and remained one of its staunchest supporters. Through the years, David was a rock who not only brought reasoned and calm analysis to posts but also to the management of the blog. He started as a regular commentator under the name “Nal” and I then invited him to write on the weekends. He played the role of editor as well as writer. (Indeed, I am worried about this memorial since David often caught the many typos that I would leave in early morning postings). I came to trust him absolutely in his judgment and analysis. I considered him a good friend and one of the most important influences on this blog. David wrote as a Weekend Blogger for years, sharing his insights into religion, politics, and his always popular “Find the Kitteh” contest. Our success is due in no small part to David Drumm and this blog, I hope, will remain a testament to his work and his memory. To that end, we are dedicating the entire blog today to David and his work. He was a brilliant electrical engineer, a profound writer, a passionate civil libertarian, and most importantly a fierce and loyal friend to our blogging community. (more…)

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Sen. Al Franken (D-Minn.)

Sen. Al Franken (D-Minn.)

UnknownAfter outraging many civil libertarians for his attacks on Edward Snowden and support of the Obama surveillance programs, Sen. Al Franken (D-Minn.) has finally called for answer on the tracking of citizens . . . by Ford Motor Company.

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Supreme CourtPresident_Barack_ObamaRecently, I testified on the concentration of authority in the Executive Branch and an array of unconstitutional acts committed by President Barack Obama in the circumvention of Congress. For prior columns, click here and here and here and here. One of the key areas discussed in my testimony was the President’s abuse (in my opinion) of his recess appointments power. I have two law review articles out on the issue. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). Now the issue is to be heard today by the Supreme Court in Noel Canning v. NLRB, No. 12-1115.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

In recent weeks and months, we have all heard and read the many articles and stories about the whistleblower Edward Snowden and his disclosure of enormous amounts of NSA “secrets”.  His disclosures have exposed what the NSA was really doing, which is spying on practically every American’s metadata online and on the phone.  His disclosures have also put on display what happens to a “whistleblower” in this day and age.  He has been forced to flee his home country and is currently living in exile in Russia.

Just what were his crimes that made him fear for his safety and raised doubts as to whether he would ever be given a fair trial for his alleged disclosures of secret material and programs?  He did what any good American should do and that is expose illegal or immoral governmental activities and allow the American public to decide whether its government is acting legally and fairly. Didn’t he?

You may think his disclosures were an unprecedented example of a citizen uncovering and disclosing government programs designed to, at best, skirt the line of legality by spying on Americans, but you would be wrong. (more…)

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220px-Eisenhower_in_the_Oval_Office220px-B-2_spirit_bombingBelow is my article this weekend in Al Jazaerra on the powerful lobby and industry supporting our various conflicts abroad as well as counterterrorism efforts. I previously testified before Congress on this industry and the government’s inflation of counterterrorism numbers to justify huge domestic budgets at the Justice Department FBI, and other agencies. I wrote the article for the anniversary this month of Eisenhower’s famous Military-Industrial Complex speech.

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Robert-Litt220px-James_R._Clapper_official_portraitThe Obama Administration continues to struggle with questions of why it has blocked any investigation, let alone prosecution, of James Clapper (right), director of National Intelligence, who previously acknowledged lying before the Senate. Not only has Clapper not been fired, but Obama has asked him to help oversee the “reforms” of the very abusive program that he helped run and then lied about to Congress. It is part of America’s Animal Farm where government officials can commit crimes with impunity while pursuing others like Snowden for arrest. Yet, the questions persist about Clapper so the Administration sent forth National Intelligence general counsel Robert Litt (left), who promptly made it far worse.

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NSA logo smallBernieSandersSen. Bernie Sanders asked the National Security Agency (NSA) a question that one would have thought would be easy to answer: has the NSA spied on Congress with its massive surveillance programs? The answer that came back was chilling in what it did not say. The NSA would only assure Sanders that it has “the same privacy protections as all U.S. persons.” That must be a bit unnerving for Congress since it has allowed the NSA to strip citizens of the most basic privacy protections.

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300px-thumbnail220px-Defense.gov_News_Photo_041108-M-8205V-003Many of us on this blog have been critical of the Iraq war from the outset as a war based on a false claim by the Bush Administration and then perpetuated by political cynicism by both Democratic and Republican leaders who did not want to be accused of “losing” the war. The costs were paid by soldiers and taxpayers in a war where the U.S. was often openly opposed by government figures and demonized in many parts of the country. It was clear that we were propping up a government that could not maintain order or loyalty across the country. Now, shortly after our withdrawal of combat troops, one of the most costly “victories” of the war — Fallujah — has been retaken by Al Qaeda as militants threaten additional takeovers in the country. Despite this history, members of Congress are already complaining that we should have continued the ground war longer at the cost of more American lives and billions of dollars.

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220px-BenFranklinDuplessisPresident_Barack_ObamaBelow is my column in Al Jazeera on the expansion of presidential powers in the United States. While there is growing recognition of the threat posed by the current powers exercised by the White House, it is important to keep the issue before the public if we are going to realign the tripartite system back to its original balance between the balances.

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Respectfully submitted by Lawrence E. Rafferty(rafflaw)-Guest Blogger

With the end of 2013 fast approaching, I have begun to wonder what the New Year holds for the country.  It looks like the Affordable Care Act is finally getting its website to function properly and the sign ups are now being counted in the millions.  Wall Street is still booming with the Dow Jones over 16,000, but yet unemployment is still too high and Congress is still trying to push austerity for the middle class and the poor, while doing everything in its power to prevent corporations and the wealthy from paying their fair share of taxes.  The Citizen’s United decision opened the money floodgates and needs to be curbed.  The military budget was spared in the recent Budget Deal, but yet unemployment benefits for millions have not been extended.

The gun lobby continues to prevent reasonable gun control legislation and needless scores of innocents continue to be slaughtered.  Instead of closing the gun show loophole or mandating reasonable and effective universal background checks, Congress did nothing.   Although there has been some recent movement from the Obama Administration to push Congress to allow the closing of the prison at Guantanamo Bay, the facility remains open after 12 years.  With all of the bad news or non-action on many fronts, is it possible to have hope that 2014 will bring better news for all Americans?  (more…)

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Submitted By: Mike Spindell, Guest Blogger

JFKRiceUniversityI’ve written before about the fact that the murder of JFK in Dallas was to me the most traumatic national experience in my life and the fact that I think it changed the destiny of our country in a negative fashion. I think that for many around my age this is also true, but it is now fifty years past and the majority of Americans have no real knowledge of it. The trauma of that day and the ensuing events of history have left me with an admittedly irrational repugnance towards the city of Dallas and I feel almost a shudder when I hear of Dealey Plaza, where the murder took place. These feelings are so intense that I doubt that I will ever visit Dallas in my lifetime, much less go to Dealey Plaza. When I got my weekly E Mail from my favorite investigative journalism website WhoWhatWhy.com I took note of an article about the Sixth Floor Museum at Dealey Plaza. The article was a humorous look at the potential for Christmas gifts that might be available at the museum’s gift shop and of course provided a link to the museum’s website, which I then followed. Going to the website and perusing it caused me to muse about the ability in our country to turn even our most solemn national events into commercial enterprises, while we pretend that they provide an educational service. (more…)

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Stone, Geof228px-Picture_of_Edward_SnowdenIn a previous column, I criticized the work of the White House Task Force on the NSA surveillance program as stacked with Obama loyalists with a majority of surveillance hawks. Later, one of the five members came out to say that the reforms were not significant and that he believes the program should be actually expanded not limited. Now, the only member without prior positions in the Administration and national security ties, University of Chicago Law School Professor Geoffrey Stone, has declared that the NSA is not a rogue agency and that Edward Snowden is a criminal.

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220px-Michael_Morell,_December_2012Last week, I wrote about the dangers of tasks forces bearing gifts for civil libertarians and noted how Obama stacked the task force on NSA surveillance with hawks to guarantee the preservation of the program. One of those was former Acting CIA Director Michael Morell who served during the secret development and use of the program. Obviously, if he were to conclude that the program was illegal, it would have meant that he was part of the violations. Not only did the task force maintain the program was legal (in conflict with the recent ruling of a federal court), but now Morell has called not for the limitation of the program but its expansion. That is what President Obama considers a reformer in the national security field.

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President_Barack_Obama228px-Picture_of_Edward_SnowdenBelow is my column in the Sunday Los Angeles Times on the basis for a pardon for Edward Snowden. It is clear that President Obama (and ranking congressional members) are opposed to such clemency. Snowden embarrassed a great number of powerful people in Washington, including the President. However, there is historical precedent for such a pardon and compelling arguments that such a course may be the right course for the country.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

We have all heard the political arguments for and against an Estate Tax, or as some have called it, a Death Tax.  Over the years while I attended several Continuing Legal Education seminars and Trust School presentations, I have often learned about the estate and gift tax avoidance strategy called a Grantor Retained Annuity Trust, or GRAT.  Since these estate reduction strategies are best used with very large estates, I have rarely had the opportunity to recommend it to any of my clients or trust customers. Recently, I read an article that provided some documentation just how prominent and popular the GRATS are with the super wealthy.

Just what is a GRAT and why should any of us be concerned with its use?  In my opinion, it is important to understand that when the über wealthy complain about any tweaking of the estate tax, most of them pay little or no estate or gift taxes due to the use of techniques like the GRAT.  Just how does a GRAT work?

Simply put, the donor transfers money or stock into a trust and if the assets increase in value, any increase in the stocks beyond the principal and the minimum interest rate that must be paid back to the donor, goes directly to the beneficiaries tax-free.  When you are talking assets worth millions and in some cases, billions, huge sums of money can escape the estate and gift tax process entirely.  (more…)

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President_Barack_Obama228px-Picture_of_Edward_SnowdenBelow is my column in USA Today on the NSA proposed reforms. I do believe that there are many worthy suggestions among the 46 recommendations, particularly the amending of Section 215 of the Patriot Act. However, what is missing is any true reform in ending this massive surveillance program since the White House panel started with the presumption that it was lawful. What remains are interesting but largely collateral changes. This includes a worthy proposal of adding an advocate to the FISA secret court. However, the panel does not (as with the program itself) seriously consider the need or the questionable legality of the secret court. Indeed, by tinkering around the edges of the program, the task force would effectively legitimize the program for the future. It will become the new normal in the President’s vision of a surveillance-friendly model of privacy.

The task force does call for serious changes in clearance rules however to avoid future disclosures of the abuses revealed by Edward Snowden. What is lacking is one measure that would go far in showing good faith by this President after years of rolling back on privacy: a pardon for Edward Snowden. Such pardons are not given because the subject is innocent or that a president agrees with his actions. They are granted in the totality of circumstances that mitigate the crime, including the disclosure of abuses that were long ignored, if not supported, by both the White House and Congress. A pardon can be legitimately conditioned on certain measures such as the return of undisclosed documents (which is a massive amount of files) and the signing of a non-disclosure agreement to allow prosecution for future disclosures. That would prevent further damage with disclosures, as suggested by at least on ranking intelligence official. I do not take violations of classification laws lightly and I understand the anger of many officials. However, the current standoff is not just undermining the credibility of the Administration but also doing little to limit further damage. I do not believe that Snowden is using the document to force such a pardon which remains unlikely. However, it is time to consider it. Despite the President’s understandable opposition to his method for raising the abuses, the Snowden disclosures have caused a comprehensive and international reexamination of surveillance rules, including new international measures to protect privacy. Perhaps it may be time to stop hunting the man and focus exclusively on the abuses that he disclosed. The column below is unfortunately limited in space, but it tries to raise some of these issues.

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220px-Process_of_mixing_water_with_fracking_fluids_to_be_injected_into_the_groundEnvironmentalists have been fighting the expanding use of fracking operations in the United States as a harmful practice, particularly for water contamination. The practice involves injecting millions of gallons of chemical-laced water and sand deep underground to crack shale formations to extract oil and gas. Not only does it use a huge amount of water in areas of water shortage but the chemicals contaminate both surface and underground water resources. Now a study in the journal Endocrinology has found a linkage to chemicals that have been linked to infertility, birth defects and cancer as well as elevated levels of the hormone-disrupting chemicals in the Colorado River.

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R_James_Woolsey220px-Karl_Morgenschweis_prays_for_Franz_StrasserFormer CIA Director James Woolsey has one wish for the holidays: for Edward Snowden to be tried for treason and “hanged.” That was Woolsey’s response to the suggestion of amnesty for Snowden.Of course, the National Intelligence Director can commit perjury and CIA officials can lie to Congress without nary an investigation let alone prosecution. Intelligence officials can run a torture program in violation of treaties and international law without punishment. CIA officials can openly destroy evidence so that it cannot be used against them in a criminal case and continue in office without penalty. The CIA director can even reveal classified evidence to a filmmaker working on a pro-torture movie. All of that is perfectly correct, but Snowden must die.

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Richard_J._Leon_NSA logo smallU.S. District Court Judge Richard Leon has handed down a blockbuster decision this afternoon finding that the massive National Security Agency surveillance program is unconstitutional – a view shared by many constitutional scholars including myself. The decision is not only a courageous defense of privacy but a reaffirmation of the integrity and independence of the courts. While President Obama often insists that his authority for such surveillance is clear, the Justice Department has fought mightily (and until now successfully) to block all major challenges of the program from securing judicial review. The decision is also an embarrassment to the “reform” boards set up by the White House, including one that just released its findings on the NSA program (including the assurance that the NSA program is perfectly legal).
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220px-john_mccain_official_portrait_with_alternative_backgroundCIASen. John McCain, R-Arizona, was irate this Sunday in declaring that the CIA lied to him and to Congress about a retired FBI agent, Robert Levinson, being held in Iran. However, unlike demands for the jailing of whistleblowers like Edward Snowden for revealing government abuses, McCain notably did not even suggest prosecuting CIA officials who allegedly consistently and repeatedly lied to Congress. No, he suggests that the latest example of false statements to Congress might require a reexamination of congressional oversight. Now that must be chilling for people who could be charged with federal crimes ranging from perjury to obstruction to false statements to federal officers.

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Respectfully submitted by Lawrence E. Rafferty-(Guest Blogger)

The main stream media was full of stories in the last week concerning a judge’s decision in Michigan to allow the Bankruptcy of Detroit to go forward.  What the media seems to have omitted from the discussion, is just how pensions in Detroit and across the country have come under attack.

“Now that a federal judge, Steven Rhodes, has ruled that the bankruptcy can proceed, a central issue will be whether the city can jettison up to $3.5 billion in accrued pension benefits owed city workers (which Orr claims are unfunded). With accrued state and municipal pension benefits protected by the Michigan constitution, Judge Rhodes’ ruling sets a chilling precedent for future municipal bankruptcies.” Truth-out  (more…)

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Submitted By: Mike Spindell, Guest Blogger

104248208I believe that it is impossible to deal with any problem until one understands the underlying nature of that problem. The analogy of a Physician treating the symptoms of a patient, but ignoring the cause of those symptoms, comes to mind. We have the medicine to deal with the specific manifestation of an illness like a headache and a fever, but in ameliorating the discomfort of the symptoms, we may miss the underlying pathology. This happened to me last March when shortly after being prescribed a change in the anti-rejection medicines that keep me alive after my heart transplant, I began to get so sick that I needed hospitalization in intensive care. I won’t bore you with the grimy details of this sudden downturn in health, but I must note that my most important bodily functions began to shut down. What is curious about this incident is that my wife, who is internet savvy, immediately began to suggest to my Doctors that I was having a bad reaction to the medicinal change. At first they ignored her as they had Department Heads in Cardiology, Immunology, Infectious Diseases, Neurology, Proctology, Urology and even Dermatology come in to examine me and pore over my medical charts. Finally, in response to my wife’s unfailing advocacy, they returned me to my prior anti-rejection medication. To my Physician’s surprise and possible chagrin the symptoms almost immediately began to abate and within in days I was home from the hospital and on the mend. (more…)

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300px-DF-ST-98-01305I have previously written about the waste of billions of dollars by the government without any significant discipline for government officials. We have become accustomed to reports of unimaginable corruption and waste in Afghanistan from bags of money delivered to President Karzai to constructing huge buildings to be immediately torn down to buying aircraft that cannot be used. The common element to the stories is the absence of any reported prosecution or even discipline for those responsible. You can simply waste hundreds of millions of dollars and continue in your government position. This week’s outrage comes from a report of the Special Inspector General for Afghanistan Reconstruction (SIGAR). Thus, USAid can pay a $300,000 charge for 600 gallons of diesel fuel at $500/gallon but there is no punishment, let alone a prosecution. In the meantime, small programs for as little as $1 million domestically are being cut while we gush billions in waste. We can now add a half-billion dollars spent on refurbishing aircraft for the Afghan Air Force that have been left to rot unused in Kabul and Germany. Ironically, the aircraft are called Spartan but there was nothing Spartan about the wasteful spending of the Pentagon which may now seek to destroy the aircraft.

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220px-Dana_Rohrabacher090413170658_Mike Dumont Official PhotoThere was an interesting and disturbing moment in a hearing this week on Afghanistan before the House Foreign Affairs Committee. Appearing for the Administration to answer questions on the costs and status of the war were James F. Dobbins, State’s special representative to Afghanistan and Pakistan; Donald Sampler, assistant to the administrator, U.S. Agency for International Development, which provides civilian foreign aid; and Michael Dumont, deputy assistant secretary of defense for Afghanistan, Pakistan and Central Asia (right). In the middle of the hearing, Rep. Dana Rohrabacher (left) asked what should have been a rather predictable question: how much are we continuing to spend on the war annually? None of the Administration witnesses could answer the question. He then asked how many Americans have died in battle? Again, a collective shrug from the witnesses. Even Democrats appeared stunned by the Administration’s inability or refusal to answer the questions. In the meantime, Hamid Karzai has shown the Administration a better way to dealing with pesky congressional questions: you bar them from entering the country.

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150px-General_Motors.svgThe federal government just cashed out on our General Motors shares and the final tally is a $10.5 billion loss. Many could still argue that this cost was worth it, but it is different from what has been represented to the public that we would lose no money on the deal. Indeed, the article below says that the White House delayed the final sale until after the election due to the implications of an over $10 billion bath. My concern is the lack of clarity and honesty surrounding the bailout. The public might still have supported the plan but it was not sold as an over $10 billion walkaway bailout.

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By Mike Appleton, Guest Blogger

In 1955 my parents, having decided that their five children should experience a bit of what farm life is about, purchased a house with forty acres in a canyon near Alamogordo, New Mexico, a fairly short commute to my father’s job at Holloman Air Force Base. A previous owner had operated a commercial orchard on the property, and it still had a number of fruit bearing peach and apple trees. In the course of the following year we acquired a registered brand, two calves, two pigs, three horses, a half dozen turkeys-and a hundred New Hampshire Red chicks ordered through the Sears Roebuck farm catalog. My father built a chicken coop with roosts and brooding nests and enclosed an open area with a wire fence, although we quickly learned that the wings on chickens are fully operational. The wire fence was soon removed and the chickens wandered at will.

New Hampshires are great egg producers, and we regularly collected more than we could possibly eat. So my father bought generic egg cartons and began selling the surplus to the people he worked with. My parents were obviously pleased with their egg-selling experiment because my father announced at dinner one night that he was going to build another coop, this one large enough to house five hundred hens. We were going into commercial egg production.

Over the next few months my father and I worked evenings and weekends building the new structure. It was long and high-ceilinged, with windows all along the side walls. The original coop now looked like a tool shed by comparison. And then, one day, they arrived, not the five hundred New Hampshire Reds I had envisioned, but hundreds of shiny metal cages. They would be hung from the rafters. Troughs attached to the cages would provide food and water and the eggs would roll out the front of the cages for daily collection.

My little sister Carol, who was seven at the time, was the first to react. She was horrified. It was mean and cruel, she said. Animals cannot live in cages. In short order the rest of us voiced similar outrage. Even my mother was sympathetic to our feelings on the issue. It was hopeless, and my father knew it. There would be no chicken gulag. When my father was transferred and sold the property two years later, the cages still sat on the ground in the new coop, a mute testament to compassion over economics.

But if I were to share this story with Rep. Steve King, he would likely respond that my little sister was an incipient animal rights radical and my father a fool.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

This past week the main stream media made a big deal about the unemployment rate declining to the five-year low of 7%.  While it was good news that over 200,000 jobs were added to the economy and that the unemployment rate decreased, the economy and main street are still lagging behind Wall Street.  The Federal Reserve has been attempting monetary easing strategies in an effort to stimulate the economy.  It may have worked for Wall Street, but the rest of us are still catching up.

“The Federal Reserve is the only central bank with a dual mandate. It is charged not only with maintaining low, stable inflation but with promoting maximum sustainable employment. Yet unemployment remains stubbornly high, despite four years of radical tinkering with interest rates and quantitative easing (creating money on the Fed’s books). After pushing interest rates as low as they can go, the Fed has admitted that it has run out of tools.” Ellen Brown  (more…)

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Submitted By: Mike Spindell, Guest Blogger

USDistrictCourtSealMany blogs have been written here that deal with the phony “War on Drugs” and the negative effects it has on society, particularly those lacking resources, or being people of color. This piece is not about the “War on Drugs”, but this ridiculous “war” has actually driven the abuses of our criminal justice system that is my topic today. Because the “War on Drugs” provides context for this subject I’ve included links at the bottom that supply the context behind my opinions here. Human Rights Watch produced a report this week about how most defendants in Federal drug cases are forced to plead guilty under the threat of the imposition of a mandatory sentence. I read an article in Huffington Post referencing this study and it immediately brought to mind two aspects of law enforcement and prosecution today that raise my ire.

The first is the process of plea bargaining, which I believe makes a mockery of our Criminal Justice System. The second is the concept of Mandatory Minimum Sentencing (MMS) which in my opinion leads inevitably to miscarriages of what we would like to call justice. The idea of negotiation, bargaining if you will, is that each of the two sides has the ability to provide enough of value to be able to establish a mutually beneficial contract. Clearly though when it comes to a Prosecutor bargaining with a defendant there is, except in the case of the wealthy/powerful, an unequal negotiation. The Prosecution has the authority and resources of the State backing it up. Most defendants and indeed most people in prisons, have little resources. In the public’s (thus jury’s) mind, most defendants are really guilty until proven innocent, despite the “presumption of innocence” that is supposedly a hallmark of our legal system.  Adding immeasurably to the Prosecution’s resources are “Mandatory Minimum” sentences (MMS). They were instituted by legislators who wanted to appear “tough on crime” and so represent drastic solutions to punishment needs, in order to appear as “tough” as possible. With the trump card of MMS prosecutors are in a position to threaten a defendant to “cop a plea” to avoid a more draconian prison sentence. The Human Rights Watch study shows how these two procedures have become a feature of American Criminal Justice that in my opinion makes a mockery of it. (more…)

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220px-Republicanlogo.svg220px-Washington_Post_buildingThe Washington Post has a controversial take on yesterday’s hearing in its coverage by Dana Milbank. The hearing raised the serious question of a pattern of allegedly unconstitutional actions by President Obama in either barring enforcement of federal law or directly violating those laws. However, the Washington Post only reported on the fact that impeachment was raised in the hearing in the discussion of the constitutional means left to Congress to address presidential abuse. Republicans object that the Post piece misses 99 percent of the hearing detailing the rise of an imperial presidency under Obama and four hours of discussion of the dangerous shift of power in the tripartite system. Impeachment or presidential abuse. It seems that two hearings occurred simultaneously. Both sides appear to be claiming the other is blinded by bias. The Milbank and Republican accounts appear a modern version of the parable of the elephant and the six blind men.

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150px-Florida_Gators_logo.svg220px-Delta_b767-300_n190dn_takes_off_from_heathrow_arpWe have often discussed how airlines have gradually stripped passengers of basic comforts and, more importantly, basic rights. That was evident this week in the Gainesville Regional Airport when an entire plane of passengers was told to get off their flight. Some said that they were told of “mechanical problems” the favorite mantra of airlines canceling flights for any reason, including too many unsold seats. However, passengers were a bit peeved when they looked out the window and saw the University of Florida men’s basketball team get on the plane. It appears that the airline decided to dump the ticketed passengers to fly the Gators to Connecticut for a game against the University of Connecticut.

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260px-capitol_building_full_viewThis morning I will testifying in Congress before the House Judiciary Committee on “The President’s Constitutional Duty to Faithfully Execute the Laws.” The hearing will address areas where President Obama has ordered the delay or nonenforcement of federal laws. While I happen to agree with some of these policies, I have great reservations about this record and its implications for the separation of powers.

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 By Mike Appleton, Guest Blogger

“Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to act on judicial nominations, the text of the Constitution contains no such obligation.

-Adam J. White, “Toward The Framers’ Understanding of ‘Advice and Consent’: A Historical And Textual Inquiry,” 29 Harvard J. Law & Pub. Pol. 103, 147 (2005)

“… [T]he constitutional obligation to provide advice and consent in the judicial appointment process should be seen as a nondiscretionary duty constitutionally imposed upon the Senate and enforceable by the judiciary.” 

-Lee Renzin, “Advice, Consent, and Senate Inaction-Is Judicial Resolution Possible?”, 73 N.Y.U. L. Rev. 1739, 1751 (1998) 

The Constitution requires no more than a bare majority of the Senate to approve a judicial nominee.  How do we know this?  First, there are only five situations in which the Constitution mandates super-majority approval: conviction of an impeachable offense (Article I, Section 3); expulsion of a member of Congress (Article I, Section 5); overriding a presidential veto (Article I, Section 7); approval of a treaty (Article II, Section 2); and the convening of a constitutional convention (Article V).  Second, under a familiar rule of statutory construction known as “expressio unius est exclusio alterius,” the failure to include a super-majority vote requirement in the Appointments Clause means that no such requirement exists.

Nevertheless, the Senate has been able to transform its “advice and consent” function under the Appointments Clause into a sixth super-majority approval standard through its power under Article I, Section 5 to establish “the Rules of its Proceedings.”  And the consequences have been more strongly felt during the current administration than at any other time in our history, (more…)

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

The five alleged 9/11 defendants currently being held at Guantanamo Bay where they have been detained since 2006, are currently preparing their defenses for trials that are scheduled for September 2014.  All five defendants have been subjected to what the United States government called enhanced interrogation techniques at CIA black sites even before they got to Gitmo. (more…)

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We have previously discussed how Barack Obama has become the president that Richard Nixon always wanted to be. From his Administration’s comprehensive attack on privacy and civil liberties, investigation of journalists, to his claim of unilateral authority to kill citizens, Obama has created an Imperial Presidency that could haunt this nation for generations. He has succeeded with the silent acquiescence of many liberals and Democrats who have embraced personality over principle in continuing to support his Administration. Now, a new report documents how the National Security Agency under Obama has been gathering records of online sexual activity and evidence of visits to pornographic websites to be used as part of a proposed plan to harm the reputations of people consider radicals. The obvious comparison to Nixon is only dwarfed by the comparison to J. Edgar Hoover, but again the silence is deafening from the Democrats. In the meantime, the so-called “reforms” of the NSA as expected would preserve the massive data-gathering programs of the agency — as guaranteed by such “reformers” as Dianne Feinstein.

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President_Barack_Obama220px-FlattenedRoundPillsThe Obama Administration has been widely criticized for being captured by the pharmaceutical industry, which has gotten the White House to block efforts to guarantee lower cost drugs and increase profits for these companies. Pharmaceutical lobbyists have in turn given huge amounts of campaign money to President Obama and Democratic members as well as jobs to former members. Even with this record, however, many are shocked by the White House pushing of a trade agreement that would undermine international efforts to reduce the cost of drugs and extend the patents for these companies to further increase their profits. The Trans-Pacific Partnership (TPP) allows for techniques like “evergreening” to extend patents for the industry, which in turn has continued its own evergreen record of high-paying jobs for political allies and massive campaign contributions for the White House and Congress. Everyone wins . . . except the tens of millions who cannot afford medicine. While these companies have valid interests in recouping their investment and making profits on new drugs (which are expensive to develop), the secrecy and sweeping impact of the TPP deserves far greater attention in the media.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

We have all heard the cries that so-called entitlement programs like Social Security need to be cut in order to “save” them from extinction.  Now that I am 62 years of age, I have become more interested in the issue of Social Security’s solvency.

CEO’s have gotten involved in the process through the now infamous Fix the Debt campaign initiated and funded by Billionaire Pete Peterson and the parallel campaign started by the Business Roundtable.  Both of these campaigns are supported by big business and CEO’s of large corporations with no concern where their retirement funds are going to come from. (more…)

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Sierra-RCHDDefense_Finance_Accounting_Services_(DFAS)_Official_SealI previously wrote a column about how government officials waste billions or plow whole programs in the ground without nary a reprimand. If that column bothered you, you might want to sit down. A new report has detailed how the military has cooked the books to hide trillions, that’s right trillions, in missing money and equipment. The military calls them “plugs,” a curious term for fraud. These are knowingly fake figures used to hide the fact that there is no accurate record of the money. In one finding, a single office in Columbus, Ohio, made at least $1.59 trillion in errors with $538 billion in plugs. The study reveals that government accounting records are fraudulent but that congressional oversight has been equally illusory.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

The Electronic Privacy Information Center recently won the first round of a court action asking that the Department of Homeland Security be required to disclose its plans to pull the plug on regional or national mobile telephone and internet communication systems pursuant to its Standard Operating Procedure 303.

“In the classicly-rendered case, DHS has argued that shutting down entire communication networks might be necessary in order to prevent the detonation of radio-controlled bomb or explosive device.

However, siding with the Electronic Privacy Information Center (EPIC), which brought a suit demanding more transparency for the DHS program known as “Standard Operating Procedure 303″ (or SOP303), the federal judge at the US District Court for the District of Columbia ruled that because the release of the protocol could not reasonably be seen as harming law enforcement “investigative techniques or prosecutions” it’s cited reasons for keeping the details of the program secret did not hold up.” Common Dreams

The so-called SOP 303 could allow DHS to cut-off all internet and mobile phone communications at a regional level or a national level if it determined that there was a national security concern.  We have already seen this government tactic used in Oakland in 2011 and that alleged over reach by the Bay Area Rapid Transit authorities may be the reason for EPIC’s lawsuit.  (more…)

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Submitted By: Mike Spindell, Guest Blogger

In recent years many studies have come out  that have made the case that a high proportion of CEO’s of major companies are sociopaths. At the end of this blog I’ll provide a number of links that discuss this, some from major conservative business magazines. We do know that from 1% to 3% of humans are sociopaths sharing all of these 10 characteristics:

#1) Sociopaths are charming. #2) Sociopaths are more spontaneous and intense than other people. #3) Sociopaths are incapable of feeling shame, guilt or remorse. #4) Sociopaths invent outrageous lies about their experiences. #5) Sociopaths seek to dominate others and “win” at all costs. #6) Sociopaths tend to be highly intelligent #7) Sociopaths are incapable of love #8) Sociopaths speak poetically. #9) Sociopaths never apologize. #10) Sociopaths are delusional and literally believe that what they say becomes truth.” http://www.naturalnews.com/036112_sociopaths_cults_influence.html

495px-Donald_Trump_by_Gage_SkidmorePaul_Ryan--113th_Congress--Mitt_Romney_by_Gage_Skidmore_7Now the problem with the definition of Sociopathy is that there can be a good deal of subjectivity in making the diagnosis, absent a clinician interviewing the subject. After all many people are charming, spontaneous, invent lies, try to dominate others and speak “poetically” and that doesn’t make them sociopaths. The subjectivity comes in trying to determine whether a given person is incapable of feeling guilt, shame, remorse and is delusional. A trained clinician may be able to do this via an intensive interview, but the nature of this disorder is such that even a trained clinician can be fooled by a sociopath. Rather than argue back and forth about the negative effects of CEO sociopaths on this society as the root of so much dysfunction, my readings this week suggest another theory that would provide a simpler explanation of why it seems that so many in this country have so little compassion and empathy for the less fortunate among us. We need not deem them sociopaths, but people who are simply removed from the misery that they inflict. The apocryphal story of Marie Antoinette’s “let them eat cake” may well characterize those who control most of this country’s wealth. It may be why some are sincere philanthropists, yet show such disdain and lack a sense of responsibility for the suffering that they cause. Let’s explore this further. (more…)

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President_Barack_ObamaPresident Obama is taking a great deal of heat for the cancellations of millions of policies after he repeatedly told citizens that if you like your policy you could keep it. He recently apologized for what seems a classic bait and switch. However, Obama has now announced a fix that raises a more serious question in my mind. Most of us have become used to a relatively high level of dishonesty from our leaders in Congress as well as the White House. This blog has documented whoppers, even perjury, that results in little more than a shrug in today’s political system. However, the “fix” involves the President unilaterally changing that scope and timing of a law. This has been a recurring concern with this President and the rise of the “Imperial Presidency” that he has established within ever-expanding executive powers. I will be discussing this issue today on CNN.

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225px-BenjaminNetanyahuPresident_Barack_ObamaThe Obama Administration is in the midst of an open fight with the powerful pro-Israel lobby in Congress. Israeli Prime Minister Benjamin Netanyahu has denounced negotiations viewed as historic between the United States and its allies with Iran over its nuclear program. The negotiations have attracted international support and are viewed as a rare opportunity after the change in leadership in Tehran. Netanyahu however has called upon the pro-Israel lobby to scuttle the diplomatic efforts by imposing new sanctions against Iran. Despite that fact that new sanctions would eliminate allies and be widely viewed as evidence of bad faith by the United States, AIPAC and AJC easily pushed through the sanctions in the House and they are viewed as making strides in the Senate despite the opposition of the White House.

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The U.S. Supreme Court

The U.S. Supreme Court

Today, I filed a petition for certiorari with the United States Supreme Court in Adams v. Federal Aviation Administration. The case challenges the Fair Treatment for Experienced Pilots Act (FTEPA) under which senior pilots were stripped of their benefits, seniority, and status. The law included a poison pill provision openly drafted by the Air Line Pilots Association (ALPA) to advantage their members. The ALPA provision was inserted without the knowledge of most members by former Transportation Committee Chairman James Oberstar, a major recipient of ALPA campaign contributions and publicly called “ALPA’s man” in Congress in by the group. The odyssey of that these pilots have faced in the federal courts is a chilling story of how politicians can abuse citizens without fear of political or judicial repercussions. This is now their final appeal in a case that constitutes one of the greatest injustices that I have witnessed in my career. As for Oberstar, he continued to receive contributions ALPA members until he was finally defeated in 2011. For senior pilots, he left a legacy of arbitrary injury to families across the country as a result of his blind actions on behalf of ALPA.
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Submitted By: Mike Spindell, Guest Blogger

Hill_Street_Blues_CastI have written some guest blogs in the past dealing with aspects of the issue of America becoming a Police State and will link to them at the end of this piece. There are so many issues that call for our concern and attention in this country today, that dealing with the entire dysfunctional state of our country becomes daunting due to the wealth of material. Finally, the stories on a given issue multiply in such a way that their effect is a realization across all political lines that enough is enough. The issue of our country’s continuing descent into a”Police State” equaling all we know of the vile systems in the USSR and the former East Germany is an issue that concerns me.. The situation is  dire and the consequences have produced not only horrible injustices, but also the many unneeded maiming and deaths of innocent individuals. Our country imprisons more people per capita than any other country in the world by far. Part of the reason for that is the “War on Drugs” an abject failure that falls most heavily upon people with low incomes and people of color. One such incident caused Professor Turley to pen two blogs this week. They were about a man falsely suspected of drug possession who had all his bodily orifices and cavities checked in the local Arizona police’s vain attempt to find evidence of guilt. None was found and the procedures were not only traumatic, but invasive. Thus the “War on Drugs” is one major contributing force to turning our country into a Police State.

Another contributing Police State factor has been the Federal Government militarizing our local police forces. I’ve written about this as well and will link at those blogs at the end as well. Somewhere along the line, certainly hastened by 9/11 it appeared a necessity to some that are police should be turned from officers of the law into a paramilitary occupying army. There is a great distinction between an officer of the law and a paramilitary trooper. An officer of the law the way I see it, is empowered to enforce the criminal law in ways of lawful conduct that are deemed permissible via our Constitution and Statutes.  Thus an officer of the law should be a citizen like the rest of us and in the performance of their jobs should respect the rights of the citizenry. A paramilitary trooper by definition perceives themselves operating in a hostile environment and so everyone in that environment that is not of their army is a potential “hostile”. This unerringly begets a certain level of brutality when dealing with the populace, because from a paramilitary perspective people are presumed guilty, until they are proven innocent. We have seen and I have documented in guest blogs that vast sums of money have come in from the Federal Government to help create paramilitary SWAT teams. Once created, the uses for these teams multiply far beyond their original purpose, because having a tool inevitably causes its usage. After the split I will discuss yet a third factor that adds to this police state mentality, but first I’d like to express the following. The issue of our country becoming a Police State should not be and is not a partisan issue. Just from the opinions of people who follow this blog and comment, we see general agreement that these police tactics violate our Constitution and our innate sense of propriety. We may not all agree on most aspects of government policy, but I would hope we can agree on the proper manner in which our law officers should enforce the peace. (more…)

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Submitted By: Mike Spindell, Guest Blogger

Harry_Jacob_AnslingerI’m going to use what has become a cliché to open up this piece. “The definition of insanity is doing the same thing that has failed over and over again.” Often clichés are expressions of reality that nevertheless express problems faced by generation generations and generations of human beings. In my opinion “The War on Drugs” is not only an abysmal failure, but has gone a long way towards destroying the social fabric of this country and corrupting the efforts of law enforcement, by manufacturing a “problem” that they are pressured to solve. The idea for writing this came to mind this week at my local drug store. My wife had sent me for a decongestant that contains pseudo-ephedrine to treat a persistent cold. These medications which were formerly as matter of course located in the Cold and flu section are by law now kept behind the prescription counter. To make my purchase I had to produce a driver’s license, whose number was duly entered into a computer and sign an affirmation form digitally. Now since I was a loyal viewer of “Breaking Bad” I understood why this was seen to be necessary by the government. Pseudo-Ephedrine is used in one common formula to “cook” Chrystal Methedrine, or “Speed”. The idea that I, a 69 year old greybeard, should be recorded as a potential cooker of “meth”, is so ludicrous that it caused me to think about the whole process of drug interdiction that is the result of the War on Drugs.

The reach of the War on Drugs goes far beyond the control of formerly non-controlled substances and has affected and limited the way Doctors prescribe for their patients. This prescription oversight ever expands the categories of controlled substances and puts every physician under undue government surveillance. To illustrate the silliness of this, from my own experience, let me relate that in 2010 I underwent 3 major, life-threatening operations within a 4 month period. After each operation which involved cutting my chest open (the middle one was a heart transplant) in the Surgical Intensive Care Unit I was being given unlimited dosages of morphine to deal with my pain. In each instance after an operation, after two days, I would refuse the morphine because it was affecting my thinking and the pain without it was tolerable. In each instance after practically having to forcefully deny the proffered morphine in the morning, my request for Xanax that evening to help me sleep was denied, even though my Surgeon had prescribed it. This required a late hour call to the Doctor on call to prescribe it. The nurse was only following procedure, but the scrupulousness of the procedure is the result of the War on Drugs. Physicians now treating people for various pain symptoms are now under very close scrutiny regarding the medications they prescribe. To me this is nonsensical, given that addicts always find ways to get their drugs no matter what strictures are put into place. What follows is my examination of the premises behind the War on Drugs, its affect on all of us and my solution to this “problem”. (more…)

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220px-Kathleen_Sebelius_official_portraitBelow is my column today on the continuing problems with the Affordable Care Act.  I believe some national health care plan was needed.  However, before passage, I spoke on Capitol Hill and criticized the poor drafting of the Act as well as the constitutional concerns over the federalism issues.  I was most surprised by simply the poor shape of the massive bill.  It was rushed through Congress to avoid having to go back to the Senate after the death of Ted Kennedy.  The result was many poorly considered provisions.  For that reason, I expected (particularly after the expenditure of such a huge amount) that the rollout would be done with particular care. I was shocked by the gross negligence shown by the Administration.  Health and Human Services Secretary Kathleen Sebelius repeatedly assured Congress and the public that the system was ready after almost a half billion dollars in federal funds and years of preparation.  She never informed Congress that her top tech officer (who has now resigned) refused to sign off on the program due to concerns of the lack of full testing and that various experts expressed doubts about the launch.  However, Sebelius and her aides insisted on effectively launching in the blind.  Putting aside how one may feel about national health care, this would seem an objective measure of the lack of performance.  This was the single most important task not just for Sebellius but the Administration and it was a failure.  For those who have fought hard for health care, the failure played into the hands of critics.   Yet, with a program named after a Democratic President, there seems an unwillingness to separate the merits of Obamacare from the poor administration of the rollout of the program. While officials are now profusely apologizing, it seems that (unlike most citizens) high-ranking officials are immune from performance based termination.  That is the subject of the column in USA Today.

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USRrFNFm-1.pngWe have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here). (For a prior column, click here) This trend is being fueled not only by powerful lobbyists who sometimes seem like they control both Congress and the White House but law firms that have made this a virtual cottage industry. There are a large number of law firms on retainer to bring these actions and artists and companies that do little to limit them. The latest example was brought to light by the good people at Techdirt which posted a Digital Millennium Copyright Act (DMCA) letter to Reddit informing them that they had violated copyright laws with a posting of an individual known as heisenberg69 with this image satirizing Office Depot.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

Everyday we read about the latest call for drastic cuts in government spending and claims that our national debt is killing us.  Those calling for the cuts claim that austerity is the only way that we can get the economy moving again.  To that end they call for cuts in Social Security, Medicare, SNAP and many other assistance programs, but consistently refuse to cut our immense defense budget.  Where else have these calls for austerity been made into law and what are the results of these programs?

If you look to Ireland, you can see just one example how austerity has brought a country and its people, to their knees.   (more…)

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By Mark Esposito, Guest Blogger

hqdefaultWell, the guy who ushered in the recent government shutdown with a 21 hour filibuster sure gets it honest. Texas senator Ted Cruz, that darling of the Tea Baggers, is no longer the Harvard educated political mystery man who chides the administration at every turn and who rabble rouses what is loosely referred to as the Republican base. Seems he learned the techniques of fact-free demagoguery at daddy’s knee and not amid the ivy in Cambridge (or at Princeton as Elaine M reminds me). That’s right, the Right (as in far) Reverend Rafael Cruz has embarked on his own freewheeling magical mystery tour armed only with the credential that he sired that darling of the Rebel flag wavers. Cashing in on sonny boy’s status among some on the right, Rafael Cruz is now touring the country demanding Obama “go back to Kenya” and turning the Treaty of Tripoli* on its head claiming divine sanction in decreeing that the land of the free and home of the brave is also the exclusive dominion of the Christian. And if that isn’t a big enough stain on his vestments, the representative of the Savior commands all Tea Baggers to shinny on up to the latest polling place to vote Republican.

IRS are you listening?

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