You probably didn't know that, in a criminal trial where the defendant might receive the death penalty, you can't sit on the jury if you oppose the death penalty. The theory is that if the judge decides that death is an appropriate punishment, you cannot hear the case if you refuse to even consider the judge's instruction that the defendant be sent to the electric chair. Juries have to follow the judge's instruction no matter what they think of the fairness of the laws they have to follow.

According to today's New York Times, "The process of questioning potential jurors in a death penalty case, and weeding out those who hold such strong feelings for or against capital punishment that they would be unable to apply the law, is known as 'death-qualifying' a jury." In other words, if you won't even consider the possibilty of the death penalty, you are not death-qualified and cannot sit on the jury.

The practical result of "death qualification" is that in capital cases, the jury is going to be much more conservative and sympathetic to law enforcement and the prosecution than usual. An enlightened liberal who knows about the frailties of the criminal process and distrusts law enforcement will be a much different juror than some stuffy authoritarian who thinks that you're guilty if the police say so. Knocking out a substantial portion of the population from sitting on a jury in a murder case means that the defendant will not have a jury of his peers. But this is an unavoidable consequence of (1) having the death penalty and (2) making sure that jurors will not decide the case based on their own view of what the law should be.

Yesterday, this scenario played out in a Supreme Court addressing what to do when the potential juror during the pre-trial screening process does not jump up and down in vigorous support of the death penalty. In that case, according to the New York Times, the potential juror said "he did not believe the death penalty should be used very often. One appropriate use, he said, was when there was a high likelihood that a murderer would kill again if released from prison." The judge kicked the potential juror out of the building, and the defendant was convicted by a less nuanced jury and he got the death penalty.

So the case went to the Supreme Court, stacked with conservatives who support the death penalty. The Court said that the trial judge was right to kick the potential juror off the trial because his "answer thus led to a 'reasonable inference' that he would not give full consideration to the prospect of sentencing [the defendant] to death." The dissenting Justices said the defendant received an unfair trial because the potential juror "had also made 'numerous statements' about his willingness to consider the death penalty, and that his comments about capital punishment for those who might kill again were just one example of when he might find death an appropriate punishment — too flimsy a basis for dismissing a juror."

The dissenters also noted that "Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. An individual's opinion that a life sentence without the possibility of parole is the severest sentence that should be imposed in all but the most heinous cases does not even arguably 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"

Makes sense to me. The problem is that there were only four dissenters and five justices in the majority who went the other way and made it easier to kick off jurors who do not whole-heartedly support the death penalty. What this means is that the potential juror was sent home and the defendant got a hard-core jury because Mr. Nuanced Juror did not have a "kill 'em all" approach to criminal law.

Anyone who pays attention to the debate over the death penalty is familiar with the pros and cons of this kind of drastic punishment. Opponents point out that many death row prisoners walk to freedom when DNA testing shows they didn't commit the crime. Opponents also point out that defendants with no money can't afford high-priced lawyers with a team of investigators who can pick apart the prosecution's case the way that O.J. Simpson's defense team did. But a hidden argument against the death penalty is that the process systematically excludes any potential jurors who see the world in shades of gray and who will not reach for the gun at the first sign of trouble. If you were fighting for your life in criminal court, would you want a jury that only saw things in black and white?

Cursing is a way of life for most of us. It punctuates and adds spice to the conversation like chili sauce. People on television feel the same way, which is why televised galas like the Billboard Music Awards and other events are notorious for the F-Bombs that come out of nowhere and into the living room of a six year-old child who can add this elastic word to her repertoire.

Since these televisions shows are broadcast live, the Federal Communications Commission has been grappling with foul language in the public domain for quite some time. For many years, the FCC said "the hell with it" and looked the other way when someone dropped the F-Bomb on live TV. That changed recently, when Bono from U2 gushed that an awards ceremony was "really, really, fucking brilliant." The FCC took offense since other stars had used similar language at other awards ceremonies and, after abruptly changing its policies on "fleeting expletives," decided to fine the network. Like everything else in our world, this dispute ended up in court, which ruled that the FCC is now allowed to punish the networks for "fleeting expletives," that is, curse words spontaneously uttered on live television.

This week, the United States Court of Appeals in Manhattan tore apart the FCC's justification for targeting fleeting expletives. In the old days, the court noted, the FCC didn't care about these things. But the puritanical Bush administration decided to clamp down on fleeting expletives for reasons that can only be described as transparent, according to the court.

The FCC said that it was changing its policy because excusing fleeting expletives "unfairly forces viewers (including children) to take 'the first blow." Putting aside the double-entendre of describing viewer reaction to spontaneous swear words as the "first blow," the policy made no sense. First, according to the court, the FCC did not target spontaneous cursing during a televised news interview. So if Condi Rice says "fuck" on 60 Minutes, that OK. But that exception swallows the rule. Also, the FCC decided to overlook the F-word when it's a necessary part of the creative work, like the movie Saving Private Ryan, broadcast on network television, curse words and all. This, too, swallows the rule. Kids watching the movie learn all about the F-word even if Bono can't say "fuck" during the music awards anymore.

But the most interesting part of the decision striking down the FCC's new rules on public cursing was the true meaning of the word "fuck." The FCC said that "fuck" and "shit" will almost always refer to sexual or bathroom activity. Nonsense, according to the court, which said that "this defies any common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any 'sexual or excretory' meaning." Sometimes we use the word fuck or shit the old-fashioned, way, like "fuck that shit," or, "Frank's full of shit," or "where is the fucking screwdriver?" I like this kind of common-sense judicial reasoning.

One judge disagreed with the outcome of this case. But here, too, the judge in dissent gave us a much-needed discourse on the true meaning of fuck and shit. This judge did not that these words are not always taken literally. He said, "I agree with the majority that the word is often used without a necessary intention on the part of the speaker to refer to sex. A student who gets a disappointing grade on a test, a cook who burns the roast, or a driver who returns to his parked car to find a parking ticket on the windshield, might holler out the F-Word to express anger or disappointment. The word is also sometimes used to express delight, as with Bono's exhilarated utterance on his receipt of his award. Some use it more as a declaration of uncompromising toughness, or of alignment on the side of vulgarity against prissy manners, without necessarily intending to evoke any sexual meaning. Some use it to intensify whatever it is they may be saying, and some sprinkle the word indiscriminately throughout their conversation with no apparent meaning whatsoever."

But, the dissenting judge said, the FCC can still consider the totality of the circumstances in banning this language from network broadcasts. In what has to be an unprecedented judicial discussion on the relative shock value of "fuck" and "shit," this judge concluded that "fuck" is definately more offensive than "shit." He said: "As each of the instances under review in this case involved the use of the F-Word, and because I find that the Commission has given a rational justification for its rule as applied to use of the F-Word, I do not consider the Commission's standard which makes it a decency violation to use the word 'shit.' . . . The potential for harm to children resulting from indecent broadcasting was clearly a major concern justifying the censorship scheme. In this regard, it seems to me there is an enormous difference between censorship of references to sex and censorship of references to excrement. For children, excrement is a main preoccupation of their early years. There is surely no thought that children are harmed by hearing references to excrement."

That's right, fuck is worse than shit because even little kids know about and are fascinated by shit. This too, in its own way, is common-sense legal reasoning. So there you have it. "Fleeting expletives" naturally flow from everyday discussion, and you can even say it on TV. That's your excuse when some puritan objects to the F-bomb. And if you prefer to spice your conversation with the S-bomb instead, just tell the Ol' Fogey that even a pro-FCC judge on the Court of Appeals said that "shit" is preferable to "fuck." And if its good enough for the Court of Appeals, it good enough for me.

The national disgrace that is the Bush administration was on display again over the weekend when President Dingbat said something on Saturday and then forgot that he said it on Sunday:

Bush at a press conference on Saturday:

Q: And on the deadline [for Kosovo independence]?

Bush: In terms of the deadline, there needs to be one. This needs to come — this needs to happen. Now it’s time, in our judgment, to move the Ahtisaari plan. There’s been a series of delays. You might remember there was a moment when something was happening, and they said, no, we need a little more time to try to work through a U.N. Security Council resolution. And our view is that time is up.

Bush at a press conference on Sunday:

Q: Thank you, Mr. President. Yesterday you called for a deadline for U.N. action on Kosovo. When would you like that deadline set? And are you at all concerned that taking that type of a stance is going to further inflame U.S. relations with Russia? And is there any chance that you’re going to sign on to the Russian missile defense proposal?

Bush: Thanks. A couple of points on that. First of all, I don’t think I called for a deadline. I thought I said, time — I did? What exactly did I say? I said, “deadline”? Okay, yes, then I meant what I said.

At which point assembled reporters started laughing at him.

Maybe its the consequence of years of heavy drinking which destroyed his brain cells. Maybe its the stress associated with starting a war that he cannot finish as more and more American soldiers perish. Maybe the American people should have thought about this in 2000, or in 2004.

The history of American law enforcement is the history of government surveillance of political activists, usually people on the left side of the political spectrum. From the 1950's through the mid-1970's, this was official U.S. policy through the COINTELPRO operation which represents as blatant an abuse of First American freedoms as you can imagine. After Congress shut down COINTELPRO, abuses lingered through the 1980's, but things have really picked up since 9/11 as the government has used every excuse in the book to keep track of dissidents, malcontents and radicals in addition to terrorists.

Each time the government emarks on a surveillance program it assures us that this time around there will not be any abuses. But, as always, that's not the case. According to the Washington Post, the FBI is once again overstepping the boundaries in listening to phone calls without a warrant. It's not just terrorists they're listening to; its you and me. Here's the story:

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

Between 2002 and 2006, the FBI identified 26 potential violations in its use of National Security Letters to gather phone, Internet and bank records without traditional warrants. A 2007 Justice Department report that sampled a small number of cases found 22 additional violations, raising the total to 48. That report prompted the FBI to review 10 percent of the cases since 2002. The number of potential violations found has now grown to more than 1,000 as a result of that review.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

FBI officials said the results confirmed what agency supervisors and outside critics feared, namely that many agents did not understand or follow the required legal procedures and paperwork requirements when collecting personal information with one of the most sensitive and powerful intelligence-gathering tools of the post-Sept. 11 era -- the National Security Letter, or NSL.

Such letters are uniformly secret and amount to nonnegotiable demands for personal information -- demands that are not reviewed in advance by a judge. After the 2001 terrorist attacks, Congress substantially eased the rules for issuing NSLs, requiring only that the bureau certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."

The change -- combined with national anxiety about another domestic terrorist event -- led to an explosive growth in the use of the letters. More than 19,000 such letters were issued in 2005 seeking 47,000 pieces of information, mostly from telecommunications companies. But with this growth came abuse of the newly relaxed rules, a circumstance first revealed in the Justice Department's March report by Inspector General Glenn A. Fine.

"The FBI's comprehensive audit of National Security Letter use across all field offices has confirmed the inspector general's findings that we had inadequate internal controls for use of an invaluable investigative tool," FBI General Counsel Valerie E. Caproni said. "Our internal audit examined a much larger sample than the inspector general's report last March, but we found similar percentages of NSLs that had errors."

"Since March," Caproni added, "remedies addressing every aspect of the problem have been implemented or are well on the way."

Of the more than 1,000 violations uncovered by the new audit, about 700 involved telephone companies and other communications firms providing information that exceeded what the FBI's national security letters had sought. But rather than destroying the unsolicited data, agents in some instances issued new National Security Letters to ensure that they could keep the mistakenly provided information. Officials cited as an example the retention of an extra month's phone records, beyond the period specified by the agents.

Case agents are now told that they must identify mistakenly produced information and isolate it from investigative files. "Human errors will inevitably occur with third parties, but we now have a clear plan with clear lines of responsibility to ensure errant information that is mistakenly produced will be caught as it is produced and before it is added to any FBI database," Caproni said.

The FBI also found that in 14 investigations, counterintelligence agents using NSLs improperly gathered full credit reports from financial institutions, exercising authority provided by the USA Patriot Act but meant to be applied only in counterterrorism cases. In response, the bureau has distributed explicit instructions that "you can't gather full credit reports in counterintelligence cases," a senior FBI official said.

Very few slam dunk issues reach the Supreme Court. If the Court decides to hear a case, it's because courts around the country cannot agree on a particular legal issue. The Supreme Court steps in to straighten out those issues. Even then, most Supreme Court rulings are not unanimous. If the Court resolves a legal issue by a vote of 7-2, that means that 2 of the country's greatest legal minds saw things differently.

As a practical matter, then, most legal issues worthy of Supreme Court review can be decided either way in an intellectually honest manner. When the Court decides a case 5-4, then it's really close, and a roll of the dice could have swung the Court in the opposite direction. What it sometimes boils down to is which way a particular Supreme Court Justice wants to go, and where his instincts will take him.

Yesterday, we saw this play out in a dramatic way that shut the courthouse door to a criminal defendant. Here's what happened: some guy, we'll call him Artie, committed a crime and wanted to take up an appeal. Normally, you have 30 days to file with the Court a "notice of appeal." It's a piece of paper that takes three minutes to type out on the computer. The judge who convicted Artie, though, told Artie's lawyer that he could file the notice of appeal a few days later. That's what Artie did. The Supreme Court heard the case and in its ruling noted that the courts have been all over the place in excusing these late court filings. The Court put its foot down this time and, in a decision written by Clarence Thomas, said that 30 days means 30 days and a late notice of appeal means you blew the deadline and its tough luck if you're sitting in jail, but rules are rules. Four other Justices agreed with Thomas, so Artie will be sitting in jail for quite some time, thinking about what might have been.

Four Justices disagreed with Clarence Thomas and said, in words and substance, "come on, man, Artie was late by a few days! What's the problem? In the past, the Supreme Court said, courts recognized an exception to rigid deadlines when unique circumstances required it. Yesterday, a majority on the Supreme Court said that the "unique circumstances" exception is wrong and should not be followed anymore.

The Supreme Court did not have to do this. In taking on this case, it decided to iron out a gray area, and it could have gone either way. How do we know this? Because four Justices in dissent put forward their own persuasive version of what the law has stood for over the years. But the five most conservative Justices rejected the more lenient rule that courts have been applying for years. They didn't have to do this. Why did they?

I can't answer that question, but I want to quote the opening paragraph of the dissenting Justice who led the pack on the other side, David Souter. But before I do that, let me say a few words about Souter. He was appointed to the Supreme Court in 1991 by the first President Bush. Liberals worried that Souter was out of touch with the real world because he spent his life in New Hampshire and lived in an old farmhouse and did not seem to be cosmopolitan enough. But as it turned out, Souter has turned into one of the most liberal and pragmatic Justices of the last 10 years. In his dissenting opinion yesterday, he wrote:

The [trial] Court told [defendant] that his notice of appeal was due on February 27, 2004. He filed a notice fo appeal on February 26, only to be told that he was too late becasue his deadline had actually been February 24. It is intolerable for the judicial system to treat people way, and there is not even a technical justification for condoning this bait and switch. I respectfully dissent.

In this time of Iraq and other scandals, a story beneath the media radar is the strong turn to the right by the Supreme Court, with two recent George W. Bush appointees leading the way. George W's father did us a favor in appointing David Souter. George W. screwed us by giving us Samual Alito, who, of course, agreed with Clarence Thomas in the notice of appeal deadline case. We need more Souters and fewer Alitos.

Our society is sick because people have no idea what's going on and they make terrible choices. It's easy to blame the American public for this, but it's not all their fault. Partly their fault, to be sure, but not completely their fault. The root cause is media concentration, or the fact that most of what we hear and read is controlled by very few people in this country.

Freedom of the press only applies to those who own one. If you own the newspaper, you own the truth, whatever it is. The truth is so malleable these days that if you say something enough, it becomes true. And then those truths determine the course of our lives for the foreseeable future.

Case in point: when Al Gore ran against George W. Bush in 2000, the media developed a storyline for the campaign that went something like this: Bush is the rich man's son and the kind of guy you'd want to have a beer with. Gore, on the other hand, is a know-it-all and a meglomanic who thinks he invented the Internet. It was widely agreed upon by the people who agree upon these sort of things that Gore lost the debates in 2000 for speaking too loudly, for sighing into the microphone and then for trying to hard to be soft-spoken and thoughtful. Issues were not discussed in 2000, and a year later we got slammed on September 11.

But the storyline on Gore was bullshit. It comes as a shock when I tell people this, but Gore never said he'd invented the Internet. It was an urban legend and a distortion of what he actually told CNN's Wolf Blitzer in saying that as a Congressman he helped raise money for Internet research in its formative years. Some asshole decided that Gore really said that he'd invented the Internet, and the media decided that it was funny that he "said" this. The razor-thin election in 2000 no doubt turned, in part, on the public's disgust with Gore's s0-called delusional statements, and the media certainly fueled that negative public image. So as Bin Ladin was plotting against us that year, 20-20 hindsight makes it crystal clear that the campaign in 2000 was a charade and a waste of time as none of the candidates talked about terrorism and what the United States should do about it.

Had the 2000 campaign focused on real issues, and had the public taken seriously the things that truly matter, there is no question in my mind that Bush would not have been elected that year. Had Bush been forced to talk about the issues in a serious way -- instead of asking him to regurgitate the sound bites that his advisors fed him -- he would have been laughed off the public stage like a high school student who showed up for a Math final thinking it was an English final. All that Bush has done since the 2000 election is to destroy the country and take apart everything we stand for brick by brick.

One reason for this, as I said, is the American people did not know what they were doing. But the American people did not have the information, either. That's were the media comes in. The media in this country is wasting their broadcasting licenses and their printing presses. You can thank the New York Times for giving us the Iraq war, brought upon in part by Judith Miller's dishonest reporting about Iraq's non-existent weapons of mass destruction. The Times later apologized for Miller's propaganda which influenced other media outlets to take seriously the blatent lies of the Bush administration. That extensive apology is here (pain in the ass registration required). You can also thank the New York Times for giving Bush the 2004 election as the paper until after the election sat on that explosive relevation that the Bush administration was blatently ignoring the law in wiretapping phones without a search warrant.

As negligent as the Times has been, that paper is as good as it gets. But it publishes a lot of shit. The Sunday Times has so many sections (news, arts, sports, style, etc.) that I risk getting a hernia each Sunday when I haul the paper into the house. And it's so heavy that I risk throwing out my back when I bend over to pick up the Sunday Times at the end of my driveway. I rummage through the paper looking for the good stuff and chuck the style and travel sections over my shoulder like a kid on Christmas morning who's been given a dictionary.

The media monopoly is real. That's the title of a landmark book by media critic Ben Bagdikian. As the title suggests, Bagdikian writes about the consolidation of media ownership and how the few gatekeepers control everything that we know. But what's really interesting and upsetting about this book is that it's been updated six times since 1983. That year, Bagdikian reported that most media in this country was controlled by about 20 corporations. Now that number is down to six companies. That's right, six companies! Below is a good summary of what's happening:

In 1983, 50 corporations controlled the vast majority of all news media in the U.S. At the time, Ben Bagdikian was called "alarmist" for pointing this out in his book, The Media Monopoly. In his 4th edition, published in 1992, he wrote "in the U.S., fewer than two dozen of these extraordinary creatures own and operate 90% of the mass media" -- controlling almost all of America's newspapers, magazines, TV and radio stations, books, records, movies, videos, wire services and photo agencies. He predicted then that eventually this number would fall to about half a dozen companies. This was greeted with skepticism at the time. When the 6th edition of The Media Monopoly was published in 2000, the number had fallen to six. Since then, there have been more mergers and the scope has expanded to include new media like the Internet market.

So what's happening is less news and more infotainment. Paris Hilton has 90 percent name recognition in this country. But how many people know about the Downing Street Memos? Paris Hilton's antics have no impact on our daily lives. But people are dead because they send their sons to war without finding out about the Downing Street Memos, the smoking gun documents that confirm that Bush was full of shit when he said war was a last resort and that he was trying in good faith to uncover WMD's.

There is no overriding solution to the media monopoly. We will still read the paper and know that it's giving us half the story, if at all. But one solution is to rely on alternative media, organized and written by people who want to get the truth out or at least provide context. These people do not live in mansions or drive BMW's. Nor do they take fancy vacations. But they do try to enlighten others in the belief that if they say "holy shit" in reading something important, it's quite likely that others will have the same reaction, and if enough people say "holy shit" than a man-child like George W. Bush will not take the White House in another razor-thin election.

Planet Waves is one of the best independent media outlets around. It operates on a shoestring and it certainly doesn't pay me for writing this blog. It does not run the annoying advertisements that make reading the paper and watching TV such a chore. But Eric Francis and his crew have to pay bills and eat and occasionally run to the corner store to buy toilet paper and soap. The talented people who run Planet Waves could be earning the big bucks in selling out to work for the corporate media, but that would mean sanitized articles and killed stories about the real world and what's happening around us.

What has Planet Waves given us? Eric's tireless reporting about PCB contamination at a SUNY campus in upstate New York may finally bear some fruit as the current student body is taking an interest and organizing on the issue. For this reason alone, Planet Waves deserves your support. Subscribe to Planet Waves Weekly or, at least, send Planet Waves whatever you can afford, from a few dollars to the money you were going to tip the pizza guy this week, or even more than that. Send what you can so you can subscribe to Planet Waves Weekly.

I will say this with utmost confidence: if Eric Francis was editing the New York Times, there would be no Iraq war, we would be well on our way to dealing with global warming, corporate giants would be forced to clean up their toxic pollution (or risk going to jail) and George W. Bush would be coaching Little League in Crawford, Texas. Doesn't a guy who could do all those things for us deserve some of your money? Huh?

Most criminals commit their crimes in the middle of the night. That way, no one can see them and they can get away with it. But if you're real good at it, you can commit the crimes in broad daylight, and smile in the security cameras.

Back in the 1990's, when Bill Clinton was under fire over his extra-curricular sexual activity, he tried to commit a crime in broad daylight, but he got caught and we are still making fun of him today. He testified under oath as follows: "It depends upon what the meaning of the word 'is' is. If 'is' means 'is and never has been' that's one thing - if it means 'there is none', that was a completely true statement."

Yeah, that was pretty slippery. But everyone knows that sex addicts like Clinton will lie and prevaricate about sex. The only real victim in the Monica Lewinsky scandal was Hillary Clinton.

The Monica-Clinton follies seem quaint today when the current administration has totally fouled up every policy initiative available to them and wasted hundreds of billions of dollars fighting a war of choice against a country that never attacked us or threatened us. Political observers widely believe that Vice President Cheney is the brains behind the White House, particularly since George W. Bush does not have the intellegence or the curiosity to make decisions on his own. A Clinton-like word-game unfolded last week which makes the Clinton-era scandals look meaningless and the Bush administration look like the venal shysters that we have always known them to be.

The story begins with efforts by the National Archives to obtain Bush administration records out of the Vice President's office. The National Archives is a part of the Executive Branch, which is the presidential arm of U.S. government. (The other two branches, for those of you who snoozed through social studies or civics class, are the Legislative Branch -- Congress -- and the Judicial Branch -- the Courts). Dick Cheney did not want to produce the records, presumably because they contain embarassing information that would not look good in the newspaper (why else would he hold onto these records?).

Cheney is so focused on withholding government records from public oversight that he wants to shut down the National Archives. The New York Times reports, "For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the National Archives unit that monitors classification in the executive branch objected, the vice president’s office suggested abolishing the oversight unit, according to documents released yesterday by a Democratic congressman."

Shutting down an entire government agency to avoid having to produce public records is like carpet-bombing a village because some bad guys might be hiding out there. But the story gets better. Cheney's people are suggesting that an Executive Order that requires people in the Bush administration to produce records for public oversight does not apply to Dick Cheney, the Vice President. According to the New York Times: "officials familiar with Mr. Cheney’s view said that he and his legal adviser, David S. Addington, did not believe that the executive order applied to the vice president’s office because it had a legislative as well as an executive status in the Constitution."

This is insane. As Vice President, Dick Cheney is part of the Executive Branch. What the sleazy advisors in the Bush administration are saying is that since Cheney also technically presides over the U.S. Senate (the Legislative Branch), he is not truly a part of the Executive Branch. At a press conference last week, the hapless spokeswoman for the corrupt Bush regime had to fend off hostile questions from the media. Here is a partial transcript:

Q: What do you make of what congressman Waxman referred to as “absurd,” which was the Vice President’s contention that his office is not part of the executive branch?

PERINO: What I think, as I said, I think that is an interesting constitutional question that people can debate. What I think is absurd is —

Q: Would you agree with his contention?

PERINO: What I think is absurd –

Q: Hang on a second. Do you agree with his contention?

PERINO: What I think is absurd is Chairman Waxman asserting some sort of authority over the president in regarding [sic] an executive order, of which he is the sole enforcer.

Q: Would you agree with the contention that the office of the Vice President is not part of the executive branch?

PERINO: What I know — and I am not a lawyer and this is an interesting legal question that legal scholars can debate and I’m sure you’ll find plenty of them inside the Beltway — is that the Vice President has a unique role in our United States government. He is not only the Vice President of the United States, but in that role he is also the President of the Senate. I will go ahead, I will let that debate be held, but what I’m answering questions on, in regards to this morning, is Chairman Waxman’s accusations about this small provision and going back and reading the E.O. and realizing that the President did not intend to have the Vice President treated any differently than himself, and remembering that the executive order is enforced solely by the president of the United States. I think this is a little bit of a non-issue.

Folks, this is very sick. It's as if the Bush administration is saying that we don't have three branches of government, we have four branches of government: the Executive Branch, the Legislative Branch, the Judicial Branch and the Cheney Branch.

But it gets even better! According to the Los Angeles Times, Bush says he is not covered by the Executive Order requiring the Executive Branch (that's the President and Vice President) to comply with requests for public documents.

The White House said Friday that, like Vice President Dick Cheney's office, President Bush's office is not allowing an independent federal watchdog to oversee its handling of classified national security information.

An executive order that Bush issued in March 2003 — amending an existing order — requires all government agencies that are part of the executive branch to submit to oversight. Although it doesn't specifically say so, Bush's order was not meant to apply to the vice president's office or the president's office, a White House spokesman said.

This means that the President and Vice President do not have to comply with an Executive Order issued by the President. Which means the Executive Order has the value of a roll of toilet paper. The Bush administration is not commiting crimes in the middle of the night. They are doing it brazenly, right in front of the security cameras. It's like trying to hold up a police station. Why rob a liquor store in the middle of the night when you can rob the police?

More commentary on this outrage here. How much longer do we have to put up with this shit? And, more important, who's buying this shit?

The news of the day is a lengthy article in this morning's Washington Post describing in detail precisely how Vice President Dick Cheney has gone about the nation's business in utter secrecy, creating from himself a super-double-secret branch of the White House where the country's most important policies are crafted with little, if any, public input or even oversight from other members of the Bush administration.

Here is the article. Print it out and read it. If you can't pass through the Washington Post website, it's reprinted in full below. I'll say this. We have long since turned a corner into a new era. I have always maintained that American administrations each misgoverned this country through shortsighted and even criminal policies that result in the deaths of thousands through irrational foreign and domestic policies. But has anyone ever seen an administration like the George W. Bush administration?

It's easy to see why Cheney gets away with calling the shots in the Bush White House. Simply stated, George W. Bush is too dumb to articulate and formulate policies. He got elected because the American public thought he was a nice guy and people were sick of Bill Clinton's shenanigans and took it out on Al Gore, Clinton's deputy for eight years. I am sure the Republican establishment thought very little of George W., but he was a very good fundraiser and seemed electable. If he actually got elected, the Republican establishment probably figured, we'll find a way to deal with the fact that the country is nominally being run by a guy who's dumber than a stick. The answer was Dick Cheney. Commentary on the Washington Post articles here, here and here.

'A Different Understanding With the President' By Barton Gellman and Jo Becker Washington Post Staff Writers Sunday, June 24, 2007; Page A01

Just past the Oval Office, in the private dining room overlooking the South Lawn, Vice President Cheney joined President Bush at a round parquet table they shared once a week. Cheney brought a four-page text, written in strict secrecy by his lawyer. He carried it back out with him after lunch.

In less than an hour, the document traversed a West Wing circuit that gave its words the power of command. It changed hands four times, according to witnesses, with emphatic instructions to bypass staff review. When it returned to the Oval Office, in a blue portfolio embossed with the presidential seal, Bush pulled a felt-tip pen from his pocket and signed without sitting down. Almost no one else had seen the text.

Cheney's proposal had become a military order from the commander in chief. Foreign terrorism suspects held by the United States were stripped of access to any court -- civilian or military, domestic or foreign. They could be confined indefinitely without charges and would be tried, if at all, in closed "military commissions."

"What the hell just happened?" Secretary of State Colin L. Powell demanded, a witness said, when CNN announced the order that evening, Nov. 13, 2001. National security adviser Condoleezza Rice, incensed, sent an aide to find out. Even witnesses to the Oval Office signing said they did not know the vice president had played any part.

The episode was a defining moment in Cheney's tenure as the 46th vice president of the United States, a post the Constitution left all but devoid of formal authority. "Angler," as the Secret Service code-named him, has approached the levers of power obliquely, skirting orderly lines of debate he once enforced as chief of staff to President Gerald R. Ford. He has battled a bureaucracy he saw as hostile, using intimate knowledge of its terrain. He has empowered aides to fight above their rank, taking on roles reserved in other times for a White House counsel or national security adviser. And he has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert.

Over the past six years, Cheney has shaped his times as no vice president has before. This article begins a four-part series that explores his methods and impact, drawing on interviews with more than 200 men and women who worked for, with or in opposition to Cheney's office. Many of those interviewed recounted events that have not been made public until now, sharing notes,e-mails, personal calendars and other records of their interaction with Cheney and his senior staff. The vice president declined to be interviewed.

Two articles, today and tomorrow, recount Cheney's campaign to magnify presidential war-making authority, arguably his most important legacy. Articles to follow will describe a span of influence that extends far beyond his well-known interests in energy and national defense.

In roles that have gone largely undetected, Cheney has served as gatekeeper for Supreme Court nominees, referee of Cabinet turf disputes, arbiter of budget appeals, editor of tax proposals and regulator in chief of water flows in his native West. On some subjects, officials said, he has displayed a strong pragmatic streak. On others he has served as enforcer of ideological principle, come what may.

Cheney is not, by nearly every inside account, the shadow president of popular lore. Bush has set his own course, not always in directions Cheney preferred. The president seized the helm when his No. 2 steered toward trouble, as Bush did, in time, on military commissions. Their one-on-one relationship is opaque, a vital unknown in assessing Cheney's impact on events. The two men speak of it seldom, if ever, with others. But officials who see them together often, not all of them admirers of the vice president, detect a strong sense of mutual confidence that Cheney is serving Bush's aims.

The vice president's reputation and, some say, his influence, have suffered in the past year and a half. Cheney lost his closest aide, I. Lewis "Scooter" Libby, to a perjury conviction, and his onetime mentor, Donald H. Rumsfeld, in a Cabinet purge. A shooting accident in Texas, and increasing gaps between his rhetoric and events in Iraq, have exposed him to ridicule and approval ratings in the teens. Cheney expresses indifference, in public and private, to any verdict but history's, and those close to him say he means it.

Waxing or waning, Cheney holds his purchase on an unrivaled portfolio across the executive branch. Bush works most naturally, close observers said, at the level of broad objectives, broadly declared. Cheney, they said, inhabits an operational world in which means are matched with ends and some of the most important choices are made. When particulars rise to presidential notice, Cheney often steers the preparation of options and sits with Bush, in side-by-side wing chairs, as he is briefed.

Before the president casts the only vote that counts, the final words of counsel nearly always come from Cheney.

'The Go-To Guy on the Hill'

In his Park Avenue corner suite at Cerberus Global Investments, Dan Quayle recalled the moment he learned how much his old job had changed. Cheney had just taken the oath of office, and Quayle paid a visit to offer advice from one vice president to another.

"I said, 'Dick, you know, you're going to be doing a lot of this international traveling, you're going to be doing all this political fundraising . . . you'll be going to the funerals,' " Quayle said in an interview earlier this year. "I mean, this is what vice presidents do. I said, 'We've all done it.' "

Cheney "got that little smile," Quayle said, and replied, "I have a different understanding with the president."

"He had the understanding with President Bush that he would be -- I'm just going to use the word 'surrogate chief of staff,' " said Quayle, whose membership on the Defense Policy Board gave him regular occasion to see Cheney privately over the following four years.

From Wyoming to the White House

Dick Cheney, the 46th vice president of the United States, entered office with unique qualifications. Cheney, 66, grew up in Lincoln, Neb., and Casper, Wyo., acquiring a Westerner's passion for hunting and fishing but not for the Democratic politics of his parents. He wed his high school sweetheart, Lynne Vincent, beginning what friends describe as a lifelong love affair. Cheney flunked out of Yale but became a highly regarded PhD candidate in political science at the University of Wisconsin -- avoiding the Vietnam War draft with five deferments along the way -- before abandoning the doctoral program and heading to Washington as a junior congressional aide.

He went on to build an unmatched Washington resume as White House chief of staff, House minority whip and secretary of defense. An aversion to political glad-handing and a series of chronic health problems, including four heart attacks, helped derail his presidential ambitions and shifted his focus to a lucrative stint as chairman of Halliburton, an oil services company. His controlled demeanor, ranging mainly from a tight-lipped gaze to the trademark half-smile, conceals what associates call an impish sense of humor and unusual kindness to subordinates.

Cheney's influence in the Bush administration is widely presumed but hard to illustrate. Many of the men and women who know him best said an explanation begins with the way he defined his role.

As the Bush administration prepared to take office, "I remember at the outset, during the transition, thinking, 'What do vice presidents do?' " said White House Chief of Staff Joshua B. Bolten, who was then the Bush team's policy director. Bolten joined Libby, his counterpart in Cheney's office, to compile a list of "portfolios we thought might be appropriate." Their models, Bolten said, were Quayle's Council on Competitiveness and Al Gore's National Partnership for Reinventing Government.

"The vice president didn't particularly warm to that," Bolten recalled dryly.

Cheney preferred, and Bush approved, a mandate that gave him access to "every table and every meeting," making his voice heard in "whatever area the vice president feels he wants to be active in," Bolten said.

Cheney has used that mandate with singular force of will. Other recent vice presidents have enjoyed a standing invitation to join the president at "policy time." But Cheney's interventions have also come in the president's absence, at Cabinet and sub-Cabinet levels where his predecessors were seldom seen. He found pressure points and changed the course of events by "reaching down," a phrase that recurs often in interviews with current and former aides.

The president and vice president have their weekly lunch meeting in a private dining room just past the Oval Office in October 2001. A few weeks later, Cheney would bring a proposal written by his lawyer in strict secrecy. More Cheney photos...Mary Matalin, who was counselor to the vice president until 2003 and remains an informal adviser, described Cheney's portfolio as "the iron issues" -- a list that, as she defined it, comprises most of the core concerns of every recent president. Cheney took on "the economic issues, the security issues . . . the energy issues" -- and the White House legislative agenda, Matalin said, because he became "the go-to guy on the Hill." Other close aides noted, as well, a major role for Cheney in nominations and appointments.

As constitutional understudy, with no direct authority in the executive branch, Cheney has often worked through surrogates. Many of them owed their jobs to him.

While lawyers fought over the 2000 Florida ballot recount, with the presidential election in the balance, Cheney was already populating a prospective Bush administration. Brian V. McCormack, then his 26-year-old personal aide, said Cheney worked three cellphones from the round kitchen table of his townhouse in McLean, "making up lists" of nominees beginning with the secretaries of state, defense and the Treasury.

"His focus was that we need to prepare for the event that [the recount] comes out in our favor, because we will have a limited time frame," McCormack recalled.

Close allies found positions as chief and deputy chief of the Office of Management and Budget, deputy national security adviser, undersecretary of state, and assistant or deputy assistant secretary in numerous Cabinet departments. Other loyalists -- including McCormack, who progressed to assignments in Iraq's occupation authority and then on Bush's staff -- turned up in less senior, but still significant, posts.

In the years that followed, crossing Cheney would cost some of the same officials their jobs. David Gribben, a friend from graduate school who became the vice president's chief of legislative affairs, said Cheney believes in the "educational use of power." Firing a disloyal or poorly performing official, he said, sometimes "sends a signal crisply." Cheney believes he is "using his authority to serve the American people, and he's obviously not afraid to be a rough opponent," Gribben said.

A prodigious appetite for work, officials said, prepares Cheney to shape the president's conversations with others. His Secret Service detail sometimes reports that he is awake and reading at 4:30 a.m. He receives a private intelligence briefing between 6:30 and 7 a.m., often identifying issues to be called to Bush's attention, and then sits in on the president's daily briefing an hour later. Aides said that Cheney insists on joining Bush by secure video link, no matter how many time zones divide them.

Stealth is among Cheney's most effective tools. Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."

Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs. His general counsel has asserted that "the vice presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch," and is therefore exempt from rules governing either. Cheney is refusing to observe an executive order on the handling of national security secrets, and he proposed to abolish a federal office that insisted on auditing his compliance.

In the usual business of interagency consultation, proposals and information flow into the vice president's office from around the government, but high-ranking White House officials said in interviews that almost nothing flows out. Close aides to Cheney describe a similar one-way valve inside the office, with information flowing up to the vice president but little or no reaction flowing down.

All those methods would be on clear display when the "war on terror" began for Cheney after eight months in office.

A 'Triumvirate' and Its Leader

In a bunker beneath the East Wing of the White House, Cheney locked his eyes on CNN, chin resting on interlaced fingers. He was about to watch, in real time, as thousands were killed on Sept. 11, 2001.

Previous accounts have described Cheney's adrenaline-charged evacuation to the Presidential Emergency Operations Center that morning, a Secret Service agent on each arm. They have not detailed his reaction, 22 minutes later, when the south tower of the World Trade Center collapsed.

"There was a groan in the room that I won't forget, ever," one witness said. "It seemed like one groan from everyone" -- among them Rice; her deputy, Stephen J. Hadley; economic adviser Lawrence B. Lindsey; counselor Matalin; Cheney's chief of staff, Libby; and the vice president's wife.

Cheney made no sound. "I remember turning my head and looking at the vice president, and his expression never changed," said the witness, reading from a notebook of observations written that day. Cheney closed his eyes against the image for one long, slow blink.

Three people who were present, not all of them admirers, said they saw no sign then or later of the profound psychological transformation that has often been imputed to Cheney. What they saw, they said, was extraordinary self-containment and a rapid shift of focus to the machinery of power. While others assessed casualties and the work of "first responders," Cheney began planning for a conflict that would call upon lawyers as often as soldiers and spies.

In a bunker under the White House on Sept. 11, 2001, Cheney speaks to administration officials, including from far left, Joshua B. Bolten, Karen Hughes, Mary Matalin (standing), Condoleezza Rice and I. Lewis 'Scooter' Libby (behind Rice) More Cheney photos.... More than any one man in the months to come, Cheney freed Bush to fight the "war on terror" as he saw fit, animated by their shared belief that al-Qaeda's destruction would require what the vice president called "robust interrogation" to extract intelligence from captured suspects. With a small coterie of allies, Cheney supplied the rationale and political muscle to drive far-reaching legal changes through the White House, the Justice Department and the Pentagon.

The way he did it -- adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back -- turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush's successors.

Yet even as Bush was forced into public retreats, an examination of subsequent events suggests that Cheney has quietly held his ground. Most of his operational agenda, in practice if not in principle, remains in place.

In expanding presidential power, Cheney's foremost agent was David S. Addington, his formidable general counsel and legal adviser of many years. On the morning of Sept. 11, Addington was evacuated from the Eisenhower Executive Office Building next to the White House and began to make his way toward his Virginia home on foot. As he neared the Arlington Memorial Bridge, someone in the White House reached him with a message: Turn around. The vice president needs you.

Down in the bunker, according to a colleague with firsthand knowledge, Cheney and Addington began contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?

Before the day ended, Cheney's lawyer joined forces with Timothy E. Flanigan, the deputy White House counsel, linked by secure video from the Situation Room. Flanigan patched in John C. Yoo at the Justice Department's fourth-floor command center. White House counsel Alberto R. Gonzales joined later.

Thus formed the core legal team that Cheney oversaw, directly and indirectly, after the terrorist attacks.

Yoo, a Berkeley professor-turned-deputy chief of the Office of Legal Counsel, became the theorist of an insurrection against legal limits on the commander in chief. Addington, backed by Flanigan, found levers of government policy and wrote the words that moved them.

"Addington, Flanigan and Gonzales were really a triumvirate," recalled Bradford A. Berenson, then an associate White House counsel. Yoo, he said, "was a supporting player."

Gonzales, a former Texas judge, had the seniority and the relationship with Bush. But Addington -- a man of imposing demeanor, intellect and experience -- dominated the group. Gonzales "was not a law-of-war expert and didn't have very developed views," Yoo recalled, echoing blunter observations by the Texan's White House colleagues.

Cheney 'Has the Portfolio'

Flanigan, with advice from Yoo, drafted the authorization for use of military force that Congress approved on Sept. 18. [Read the authorization document] Yoo said they used the broadest possible language because "this war was so different, you can't predict what might come up."

In fact, the triumvirate knew very well what would come next: the interception -- without a warrant -- of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as "incident to" the authority Congress had just granted. Yoo was already working on that memo, completing it on Sept. 25.

It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object. Among the excluded was John B. Bellinger III, a man for whom Cheney's attorney had "open contempt," according to a senior government lawyer who saw them often. The eavesdropping program was directly within Bellinger's purview as ranking national security lawyer in the White House, reporting to Rice. Addington had no line responsibility. But he had Cheney's proxy, and more than once he accused Bellinger, to his face, of selling out presidential authority for good "public relations" or bureaucratic consensus.

Addington, who seldom speaks to reporters, declined to be interviewed.

"David is extremely principled and dedicated to doing what he feels is right, and can be a very tough customer when he perceives others as obstacles to achieving those goals," Berenson said. "But it's not personal in the sense that 'I don't like you.' It's all about the underlying principle."

Bryan Cunningham, Bellinger's former deputy, said: "Bellinger didn't know. That was a mistake." Cunningham said Rice's lawyer would have recommended vetting the surveillance program with the secret court that governs intelligence intercepts -- a step the Bush administration was forced to take five years later.

'A Muscular Response'

Vice President Cheney, more than any one man, freed President Bush to aggressively fight the "war on terror." With a small coterie of allies, Cheney supplied the rationale and political muscle to drive far-reaching legal changes through the White House, Justice Department and Pentagon. More »On Oct. 25, 2001, the chairmen and ranking minority members of the intelligence committees were summoned to the White House for their first briefing on the eavesdropping and were told that it was one of the government's most closely compartmented secrets. Under Presidents George H.W. Bush or Bill Clinton, officials said, a conversation of that gravity would involve the commander in chief. But when the four lawmakers arrived in the West Wing lobby, an aide led them through the door on the right, away from the Oval Office.

"We met in the vice president's office," recalled former senator Bob Graham (D-Fla.). Bush had told Graham already, when the senator assumed the intelligence panel chairmanship, that "the vice president should be your point of contact in the White House." Cheney, the president said, "has the portfolio for intelligence activities."

'Oh, By the Way'

By late October, the vice president and his allies were losing patience with the Bush administration's review of a critical question facing U.S. forces in Afghanistan and elsewhere: What should be done with captured fighters from al-Qaeda and the Taliban? Federal trials? Courts-martial? Military commissions like the ones used for Nazis under President Franklin D. Roosevelt?

Cheney's staff did not reply to invitations to join the interagency working group led by Pierre Prosper, ambassador at large for war crimes. But Addington, the vice president's lawyer, knew what his client wanted, Berenson said. And Prosper's group was still debating details. "Once you start diving into it, and history has proven us right, these are complicated questions," one regular participant said.

The vice president saw it differently. "The interagency was just constipated," said one Cheney ally, who spoke on condition of anonymity.

Flanigan recalled a conversation with Addington at the time in which the two discussed the salutary effect of showing bureaucrats that the president could act "without their blessing -- and without the interminable process that goes along with getting that blessing."

Throughout his long government career, Cheney had counseled against that kind of policy surprise, insisting that unvetted decisions lead presidents to costly mistakes.

Cheney's Advice to Baker

Advice from Cheney to then incoming presidential chief of staff James A. Baker filled four pages of a yellow legal pad. View the actual notes and a transcript. More »When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:

BE AN HONEST BROKER
DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added:

"It's not in anyone's interest to get an 'oh by the way decision' -- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this."
In 1999, not long before he became Bush's running mate, Cheney warned again about "'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.

According to Flanigan, Addington was not the first to think of military commissions but was the "best scholar of the FDR-era order" among their small group of trusted allies. "He gained a preeminent role by virtue of his sheer ability to turn out a draft of something in quick time."

That draft, said one of the few lawyers apprised of it, "was very closely held because it was coming right from the top."

'In Support of the President'

To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6, 2001, declaring that Bush did not need approval from Congress or federal courts. Yoo said in an interview that he saw no need to inform the State Department, which hosts the archives of the Geneva Conventions and the government's leading experts on the law of war. "The issue we dealt with was: Can the president do it constitutionally?" Yoo said. "State -- they wouldn't have views on that."

Attorney General John D. Ashcroft, was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House.

The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president's senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise -- as part of a strategy to deny jurisdiction to U.S. courts.

Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. "The thing I remember about it is how rude, there's no other word for it, the attorney general was to the vice president," said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: "I'm just not prepared to comment on that."

According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush. Bolten, in an October 2006 interview after becoming Bush's chief of staff, did not deny that account. He signaled an intention to operate differently in the second term.

"In my six months' experience it would not fall to the vice president to referee that kind of thing," Bolten added. "If it is a presidential decision, the president will make it. . . . I think the vice president appreciates that -- that his role is in support of the president, and not as a second-tier substitute."

Three days after the Ashcroft meeting, Cheney brought the order for military commissions to Bush. No one told Bellinger, Rice or Powell, who continued to think that Prosper's working group was at the helm.

After leaving Bush's private dining room, the vice president took no chances on a last-minute objection. He sent the order on a swift path to execution that left no sign of his role. After Addington and Flanigan, the text passed to Berenson, the associate White House counsel. Cheney's link to the document broke there: Berenson was not told of its provenance.

Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing instructions to prepare it for signature immediately -- without advance distribution to the president's top advisers. Bowen objected, he told colleagues later, saying he had handled thousands of presidential documents without ever bypassing strict procedures of coordination and review. He relented, one White House official said, only after "rapid, urgent persuasion" that Bush was standing by to sign and that the order was too sensitive to delay. [Read the order]

In an interview, Berenson said it was his understanding that "someone had briefed" the president "and gone over it" already. He added: "I don't know who that was."

'It'll Leak in 10 Minutes'

On Nov. 14, 2001, the day after Bush signed the commissions order, Cheney took the next big step. He told the U.S. Chamber of Commerce that terrorists do not "deserve to be treated as prisoners of war." [Read Cheney's full remarks]

The president had not yet made that decision. Ten weeks passed, and the Bush administration fought one of its fiercest internal brawls, before Bush ratified the policy that Cheney had declared: The Geneva Conventions would not apply to al-Qaeda or Taliban fighters captured on the battlefield.

Since 1949, Geneva had accorded protections to civilians and combatants in a war zone. Those protections varied with status, but the prevailing U.S. and international view was that anyone under military control -- even an alleged war criminal -- has some rights. Rumsfeld, elaborating on the position Cheney staked out, cast that interpretation aside. All captured fighters in Afghanistan, he said at a news briefing, are "unlawful combatants" who "do not have any rights" under Geneva.

At the White House, Bellinger sent Rice a blunt -- and, he thought, private -- legal warning. The Cheney-Rumsfeld position would place the president indisputably in breach of international law and would undermine cooperation from allied governments. Faxes had been pouring in at the State Department since the order for military commissions was signed, with even British authorities warning that they could not hand over suspects if the U.S. government withdrew from accepted legal norms.

One lawyer in his office said that Bellinger was chagrined to learn, indirectly, that Cheney had read the confidential memo and "was concerned" about his advice. Thus Bellinger discovered an unannounced standing order: Documents prepared for the national security adviser, another White House official said, were "routed outside the formal process" to Cheney, too. The reverse did not apply.

Powell asked for a meeting with Bush. The same day, Jan. 25, 2002, Cheney's office struck a preemptive blow. It appeared to come from Gonzales, a longtime Bush confidant whom the president nicknamed "Fredo." Hours after Powell made his request, Gonzales signed his name to a memo that anticipated and undermined the State Department's talking points. The true author has long been a subject of speculation, for reasons including its unorthodox format and a subtly mocking tone that is not a Gonzales hallmark.

A White House lawyer with direct knowledge said Cheney's lawyer, Addington, wrote the memo. Flanigan passed it to Gonzales, and Gonzales sent it as "my judgment" to Bush [Read the memo]. If Bush consulted Cheney after that, the vice president became a sounding board for advice he originated himself.

Addington, under Gonzales's name, appealed to the president by quoting Bush's own declaration that "the war against terrorism is a new kind of war." Addington described the Geneva Conventions as "quaint," casting Powell as a defender of "obsolete" rules devised for another time. If Bush followed Powell's lead, Addington suggested, U.S. forces would be obliged to provide athletic gear and commissary privileges to captured terrorists.

According to David Bowker, a State Department lawyer, Powell did not in fact argue that al-Qaeda and Taliban forces deserved the privileges of prisoners of war. Powell said Geneva rules entitled each detainee to a status review, but he predicted that few, if any, would qualify as POWs, because they did not wear uniforms on the battlefield or obey a lawful chain of command. "We said, 'If you give legal process and you follow the rules, you're going to reach substantially the same result and the courts will defer to you,'" Bowker said.

Late that afternoon, as the "Gonzales memo" began to circulate around the government, Addington turned to Flanigan.

"It'll leak in 10 minutes," he predicted, according to a witness.

The next morning's Washington Times carried a front-page article in which administration sources accused Powell of "bowing to pressure from the political left" and advocating that terrorists be given "all sorts of amenities, including exercise rooms and canteens."

Though the report portrayed Powell as soft on enemies, two senior government lawyers said, Addington blamed the State Department for leaking it. The breach of secrecy, Addington said, proved that William H. Taft IV, Powell's legal adviser, could not be trusted. Taft joined Bellinger on a growing -- and explicit -- blacklist, excluded from consultation. "I was off the team," Taft said in an interview. The vice president's lawyer had marked him an enemy, but Taft did not know he was at war.

"Which, of course, is why you're ripe for the taking, isn't it?" he added, laughing briefly.

Late June always brings us a flurry of important Supreme Court decisions. That's the deadline for the Court to wrap up its work for the year, and that's when we get the most disputed cases. I've been waiting all year for the "Bong Hits" student free speech case, and now it's here. The result: the Court has told students to get lost.

Most people would say "free speech" when you ask them what rights and entitlements separate this country from, say, Cuba or Iran. But a surprising number of people also think that students should not have any free speech rights at school. School is for learning, they say, not student speech. But you can have both learning and speech at the same time, and the old cliche is true: you can learn just as much outside the classroom as inside the classroom.

The Bong Hits case started from a smart-ass student from Alaska carried a "Bong Hits 4 Jesus" banner on a field trip when everyone went to observe an Olympic celebration. Bong Hits, of course, refer to marijuana. While the banner was obviously nonsense, the school principal punished the kid anyway because it referred to drugs. As anyone in the legal profession knows, cases like this fall into a gray area because prior court decisions have not precisely addressed this issue. So the case went to court and the Supreme Court got involved.

Student speech rights reached their apex in 1969, when a very different Supreme Court decided that a school in Iowa could not punish students for wearing black armbands to protest the Vietnam War. The Court said that students have fewer speech rights in school but that they do not shed their constitutional rights at the schoolhouse gate. Ever since then, the Court has scaled back students rights, first in 1986, when it allowed school officials to punish a kid for making sexual comments in a school assembly, and again in 1988, when the Court made it easier for schools to censor student newspapers.

It was the 1988 student newspapers case which got civil libertarians riled. The principal becomes the unofficial editor of a school-sponsored student paper. The Court chould have given the principal some editorial control but at the same time given students the benefit of the doubt on these cases. But the Court went the other way, presuming the principal knows best.

It was the school principal in the Bong Hits case who decided to punish the kid holding the banner. From my vantage point, the "Bong Hits 4 Jesus" banner was satire, not to be taken seriously. After all, Jesus is not really taking any Bong Hits. The Supreme Court has actually given satirical speakers broad speech rights, ruling in 1988 that evangelist Jerry Falwell could not sue Hustler Magazine for a lurid and sexually offensive advertisement that any rational person would interpret as satirical.

While the Bong Hits 4 Jesus banner referred to drugs and the school can censor drug-related speech inside the building, that's as far as the school can go in this case, I thought. But I was wrong. The Court ruled that the principal reasonably interpreted the banner to refer to drugs and that was enough to punish the student, even though he carried the banner outside (in view of his classmates) and it was clearly satirical.

Every Supreme Court case offers something new in the world of constitutional interpretation. This time around its the notion that, in student speech cases, school authorities get the benefit of the doubt in determining what the student was actually saying. (Satire does not appear to have played any role in deciding this case, for some reason). While the Court agreed that the Bong Hits banner was subject to different interpretations and may have been "gibberish," the Principal gets the final say on what the banner actually conveyed. This line of reasoning gives greater authority to school officials to censor student speech. Not a good thing when students are taught that American society encourages people to speak their mind and convey their thoughts.

You may say, "but Steve, the Bong Hits kid was an asshole looking for publicity." Maybe so, but its the assholes who bring on the cases that protect civil rights for the rest of us. The kids in the National Honor Society sure as hell are not testing the limits on First Amendment speech. More broadly, this was another closely-divided Supreme Court ruling scaling back civil rights. Cases like this would not come out this way if George W. Bush did not have the opportunity to appoint Supreme Court justices, who hold the job for life. The thought of a guy like George W. making lifetime Court appoints is too much for me to bear, and decisions like this make it clear that it's going to be a long, hard road ahead.

"Consequences, schmonsequences, as long as I'm rich"
(Daffy Duck)

The rogue decisionmakers in the Bush administration will be dead and buried when the consequences of their global warming policies will truly hit their children and grandchildren with full force. That the Earth is warming and the consequences will be potentially catastrophic and irreversible is enough to scare any rational person who cares about the future and our way of life, not the mention the poor people around the world who may bear the brunt of global warming even though they had nothing to do with the disasterious policies causing this environmental problem.

Investigative reporters are showing again and again that the Bush administration is knowingly doctoring the science and the reports in an effort to play down the effects of global climate change. The reason for this is probably that drastic measures to deal with global warming now will certainly undercut the profits generated by the energy companies who've been playing footsie with President Oilman and his deputy, Dick Cheney, who has taken the lead in orchestrating this shell game.

A recent report in Rolling Stone shows that these secretive practices are very real and confirm, if nothing else, that when foxes are assigned to watch the hen-house, the foxes will slaughter the hens. The environmental task forces working in the Bush administration are heavily staffed from the oil industry lobby. The conflict of interest does not have to be spelled out any further. Oil industry lackeys make a lot of money by polluting the environment, and strict controls on pollution will affect corporate profits and undermine their philosophy of government, i.e., let big business do whatever it wants. Bush administration apologists may argue that it takes oil industry experts to fully understand environmental science and policies. If that's the case, why not throw in a few people from Greenpeace or the Sierra Club? It's laughable even to suggest that environmental activists would have a seat at the table in this corrupt and rouge administration.

Here are some highlights from the Rolling Stone article, "The Secret Campaign of President Bush's Administration to Deny Global Warming":

An examination of thousands of pages of internal documents that the White House has been forced to relinquish under the Freedom of Information Act - as well as interviews with more than a dozen current and former administration scientists and climate-policy officials - confirms that the White House has implemented an industry-formulated disinformation campaign designed to actively mislead the American public on global warming and to forestall limits on climate polluters.

"They've got a political clientele that does not want to be regulated," says Rick Piltz, a former Bush climate official who blew the whistle on White House censorship of global-warming documents in 2005. "Any honest discussion of the science would stimulate public pressure for a stronger policy. They're not stupid."

Bush's do-nothing policy on global warming began almost as soon as he took office. By pursuing a carefully orchestrated policy of delay, the White House has blocked even the most modest reforms and replaced them with token investments in futuristic solutions like hydrogen cars. "It's a charade," says Jeremy Symons, who represented the EPA on Cheney's energy task force, the industry-studded group that met in secret to craft the administration's energy policy. "They have a single-minded determination to do nothing - while making it look like they are doing something."

. . .

As he shaped climate policy, Cheney took his cues from the Global Climate Coalition, an alliance of anti-Kyoto polluters that included the top lobbying arms of the oil and coal industries. In June 2001, the administration dispatched Paula Dobriansky, the undersecretary of state for global affairs, to address the GCC at the headquarters of the American Petroleum Institute. In her speech, Dobriansky was glad to give the industry crowd credit for the president's decision to withdraw from the international treaty designed to slow climate change. Her talking points from that day read, "POTUS rejected Kyoto, in part, based on input from you."

Documents released under the Freedom of Information Act also reveal that Dobriansky had received a copy of the GCC's "21st Century Climate Action Agenda," a game plan crafted by polluting industries that calls for "a new approach to climate policy" focusing on "voluntary actions" rather than mandatory limits on greenhouse gases. On February 14th, 2002, Bush gave a speech at the National Oceanic and Atmospheric Administration that laid out his policy on global warming for the first time. The speech was a Valentine's Day gift to polluters, officially enshrining the GCC's agenda, almost point for point, as the White House's climate policy.

. . .

To direct the White House's spin on global warming, [Jim] Connaughton [chairman of the President's Council on the Environmental Quality] appointed Philip Cooney as his top deputy. Cooney had the right experience for the job: He worked as "climate team leader" for the American Petroleum Institute. In 1998, the API took part in an industry coalition that created the "Global Climate Science Communications Action Plan." The plan, recently entered into evidence by the House Oversight Committee, maps out an elaborate disinformation campaign to prevent "precipitous action on climate change." The strategy was to sow doubt about global warming, disseminating industry-funded research to challenge "the science underpinning the global climate change theory."

Now, with Cooney in the White House, the industry had its own anti-climate man running the disinformation campaign. As the "action plan" directed, Cooney set out to censor the EPA's science on global warming and inject the industry's denialist positions into government documents. "They decided they didn't need to win the debate on climate," says Piltz, the former official who exposed Cooney's tactics. "They just had to leave an atmosphere of uncertainty about it and dissipate the will for political action."

Highlighting the corporate lobby's influence on White House environmental policy, Cooney watered down a report on global warming which, left alone, made it clear that warming was a serious problem caused by human activity and that immediate measures are necessary to deal with the problem. But even after Cooney watered down the report, the media still interpreted the report to suggest that global warming was a serious problem. How did the Bushies deal with this bad publicity? Another corporate flunky, Myron Ebell, was advising Cooney on damage control:

Cooney was frantic over the story in the Times. "We tried to put some qualifiers on that chapter in the report," Cooney told him. "We'd take the text from EPA, and then we'd add a sentence like, 'We don't really know if this is really happening.' So we tried to do it, but I can see now that we made a total mess of it."

Ebell's advice to Cooney is contained in a e-mail dated June 3rd, 2002. "Thanks for asking for our help," he wrote. "I know you're in crisis mode. . . . I want to help you cool things down, but after consulting with the team, I think that what we can do is limited until there is an official statement from the administration repudiating the report."

That repudiation came the very next day. President Bush himself dismissed the report, saying it had been "put out by the bureaucracy."

Finally, according to Rolling Stone, which reviewed documents obtained through the Freedom of Information Act, the task force in the White House organized to obstruct any changes in climate change policy relied on studies underwritten by the very corporate interests that stood to gain from this policy.

Internal documents uncovered by Rolling Stone reveal that Cooney did far more than edit scientific reports to suit the administration's point of view. Just as neoconservative hawk Douglas Feith funneled false intelligence on Iraq's weapons programs to the vice president, Cooney steered industry-sponsored junk science on global warming to Cheney. "What disturbed me most," [former Environmental Protection Agency head] Whitman says, "was the administration's record of taking the most extreme of the science - what I call the 'political science' - and giving it the same weight as the real science."

The most egregious example of cooked intelligence was a study underwritten in part by the API, Cooney's former employer. The study, which purported to show that the twentieth century was not unusually warm, was authored by two astrophysicists, both of whom were on the payroll of the George C. Marshall Institute, a climate-denial group funded by ExxonMobil and now headed by Bill O'Keefe, Cooney's former boss. The paper's publication in a minor German journal in January 2003 quickly created a scandal, with the editor in chief and three other editors resigning in shame after acknowledging that the paper was fundamentally flawed and should never have been published.

"It was sham science," says McCarthy, the Harvard scientist. "It's almost laughable, except that this study was held up by the administration as a definitive refutation of the temperature record."

The best way to describe what it's like to be a Supreme Court Justice is that a Supreme Court Justice can do whatever he damned well pleases, except that he must do it by the end of June, when the Court has to finish its work for the year and everyone runs off to their summer homes, teaches at fancy law schools or writes their memoirs.

It's well-known that Clarence Thomas is writing his memoirs and that a publishing house has given him a huge advance. As a general rule, you don't give Supreme Court Justices a lot of money for their memoirs, because they do not become best-sellers and most people reading them are lawyers and academics, not enough to justify a huge advance since, let's face it, when it comes to selling books, the Supreme Court is not John Grisham.

But Clarence Thomas is different. Back in 1991, when Thurgood Marshall retired from the Supreme Court after 24 years of service, the first President Bush announced that Clarence Thomas would be appointed to replace him. This shocked everyone. Marshall was a civil rights legend, whose lawyering helpend end racial discrimination in the public schools. Marshall was already worthy of a portrait on Mount Rushmore by the time he became a Supreme Court Justice in 1967, but almost no one knew who Clarence Thomas was in 1991, when he stood next to George H.W. Bush on that summer day in Kennebunkport, Maine, looking a little frazzled when Bush told the world that Thomas was the most qualified person for the Supreme Court.

Everyone acknowledges that this announcement -- that Clarence Thomas was the most qualified person for the Court -- was not true. It was the byproduct of a Washington D.C. culture where politicians say whatever comes to mind and overstate their case for seemingly no reason at all. What bothered everyone in this instance, though, was that Thomas was replacing Marshall, the legend. It also bothered everyone that (1) Thomas was only 43 years old; (2) Thomas appeared to be extremely conservative, having worked in the Reagan administration for eight years and (3) had no clear vision about the Constitution. For a lifetime appointment on a Court that interprets the true meaning of the Constitution for posterity, nominating a guy like this is like agreeing to marry someone on a blind date.

Then things got more interesting. After Thomas appeared before the U.S. Senate to answer questions about his constitutional philosophy (and gave the usual conservative responses without revealing much of anything about his views on the law), a lawyer who used to work for Thomas came forward and announced that Thomas had sexually harassed her and made her life miserable. Anita Hill testified about this as the nation watched in astonishment. Nothing like this had ever happened before. Most of us hadn't even heard of sexual harassment, but Hill's testimony seemed to provide a good primer on the subject. When she finished her testimony, Thomas got back before the Senate and proclaimed that this was a "high tech lynching" and that the sexual harassment charge was full of lies.

Nobody knew what to do. It was a classic "he said she said" scenario. Do you believe Anita, or do you believe Clarence? Someone was lying. In the end, the U.S. Senate gave Clarence Thomas the benefit of the doubt and confirmed his nomination by a vote of 52-48.

You can imagine the conversation at the publishing house when Thomas was given the huge advance for his autobiography. Clarence Thomas probably told the men with the money that he would talk about his impoverished childhood, his conservative bootstrap-philosophy, his provocative views on what ails America and a few choice anecdotes about his flirt with radical black separatism as a college student in the late 1960's. And the men with the money probably said, "That's fine Clarence, but you'd better say something about Anita Hill and sexual harassment." This is because sex sells and in many ways, that dispute over whether Clarence sexually harassed Anita triggered the culture wars that remain with us today.

As we speak, Thomas is probably drafting his autobiography. The lazy days of summer may be upon us, but not for Clarence. He's got to finish that book. I wouldn't mind reading about Anita Hill and untangling his explanation of those events. From what I have read about Clarence Thomas over the years, he remains bitter about the confirmation battle and still holds grudges about how Democrats and liberals tried to destroy him with these sexual harassment charges out of left field. But I also wouldn't mind reading about a trait that makes him unique among the more than 100 people who have served on the Supreme Court: almost total disregard for case precedent and his single-minded determination to re-write legal theories in the most provocative and remarkable way possible. The may not be as exciting as sexual harassment, but it's a little more important.

This week, the Supreme Court decided a case brought by a high school student against his former school district which punished him for posting a large banner that read, "Bong Hits 4 Jesus." The Court ruled against the student, finding a way to fit the case into existing precedent which generally gives students the right to express themselves at school so long as their behavior does not disrupt the school or interfere with the educational mission. I have written about the case here and here, but, in summary, the Court said that the banner was perceived as pro-drug and therefore inconsistent with the school's mission.

This was not good enough for Clarence Thomas. He is known for staking out his own claim in Supreme Court decisions. He will agree with the end result of a Court ruling so long as it cuts against the claims of a civil rights plaintiff, but then he will write up an opinion of his own suggesting the wholesale reconsideration of decades of case precedent. His formula for this is as follows: if the framers of the Constitution in 1787 did not recognize certain freedoms, then they could not have envisioned the Constitution as embracing those freedoms. This is called "originalism" or "original intent" legal reasoning.

Conservatives like originalism because it remains the most simplistic way of solving otherwise complicated legal problems. Prisoners are complaining about their conditions of confinement? Can't sue under the Constitution's "Cruel and Inhuman Punishment" clause because prisoners in the 18th Century were treated like animals! Want to challenge the constitutionality of the death penalty? Sorry, the framers of the Constitution had the death penalty for all sorts of crimes. See? Originalism is easy.

Few judges and scholars believe in originalism, though. There has to be some consideration of the modern world in reading and interpreting the Constitution. Times are changing, and so is the Constitution, even if it has been amended 27 times. For this reason, even conservative judges reject originalism as a means to interpret the Constitution. Not Clarence Thomas. In the Bong Hits 4 Jesus case, he wrote a particularly astonishing opinion (which no one else on the Court signed onto) stating that students in public schools should not have any free speech rights whatsoever, because that's the way that it was in 18th and 19th Century America.

Here were Thomas's main points (word for word):

1. During the colonial era, private schools and tutors offered the only educational opportunities for children, and teachers managed classrooms with an iron hand. Early public schools were not places for freewheeling debates or exploration of competing ideas. Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong. Rules of etiquette were enforced, and courteous behavior was demanded. To meet their educational objectives, schools required absolute obedience.

2. In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules.

3. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.” We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.”

So, in Clarence Thomas's world, students were seen and not heard in the 1800's, and that's the way it should be now under the First Amendment. If the framers of the Constitution did not view student speech rights as a legitimate constitutional issue, then the current Supreme Court shouldn't, either. Students should sit in hermetically sealed rooms with strict teachers slapping students on the knuckles with their rules, learning reading, writing and 'rithmetic, and God help any student who expresses and opinion or speaks up for any reason.

No one else on the Supreme Court agrees with Clarence Thomas's views on this. Thank God. I have never seen this kind of analysis in a Supreme Court opinion: wipe out all free speech rights for a class of citizens? What kind of rigid mind would endorse this view of the First Amendment? How are students going to view the world when their grade school experience consisted of sitting quietly without a peep?

I'll say this: when the world opens up Thomas's autobiography and flips straight to the chapter on Anita Hill and sexual harassment, I'm going to look elsewhere in the book for any kind of justification for this tortured and oppressive legal reasoning, and why, exactly, he did not tell the American public back during his confirmation hearings that he saw that world this way.