MIDNIGHT TRAIN (of THOUGHT) to GEORGIA

January 26, 2012

 ©2012 jbjd

Okay, so now we have confirmation that 1) President Obama will not be attending today’s administrative law hearing in Georgia and 2) neither will Attorney Michael Jablonski, representing him in that matter.

For those of you who, since learning these latest developments, have experienced a sudden descent from the manic phase of the bipolar-like disorder associated with blind belief in the probable success of any ‘legal’ ploy attempted by Attorney Orly Taitz in her quixotic pursuit of exposing President Obama is not a NBC; I offer a little ‘chillin’ out’ music for your listening pleasure.

Now, let’s work.

Here is the letter sent by Mr. Jablonski to Secretary Kemp. (H/T Jack Ryan.)

View this document on Scribd

The most important words are these:

For these reasons, and as discussed briefly below, you should bring an end to this baseless, costly and unproductive hearing by withdrawing the original hearing request as improvidently issued

Here’s the reason why.

In previous posts on the subject, I  cited several portions of the Georgia statutes which apply to the administrative process. In sum, there are 2 ways a challenge to the conduct of the Secretary of State with respect to ballot challenges, can reach the OSAH. 1) The elector aggrieved by an adverse decision of the SoS can appeal that adverse decision to the OSAH. 2) The SoS, on receiving a challenge to his act; can ‘certify’ the challenge directly to the OSAH.

For example, this section of the law describes how to file a ballot challenge.

O.C.G.A. § 21-2-5
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 21.  ELECTIONS
CHAPTER 2.  ELECTIONS AND PRIMARIES GENERALLY
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 21-2-5  (2011)

§ 21-2-5.  Qualifications of candidates for federal and state office; determination of qualifications

(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.

(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.

(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate’s name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate’s name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.

(d) In the event that a candidate pays his or her qualifying fee with a check that is subsequently returned for insufficient funds, the Secretary of State shall automatically find that such candidate has not met the qualifications for holding the office being sought, unless the bank, credit union, or other financial institution returning the check certifies in writing by an officer’s or director’s oath that the bank, credit union, or financial institution erred in returning the check.

(e) The elector filing the challenge or the candidate challenged shall have the right to appeal the decision of the Secretary of State by filing a petition in the Superior Court of Fulton County within ten days after the entry of the final decision by the Secretary of State. The filing of the petition shall not itself stay the decision of the Secretary of State; however, the reviewing court may order a stay upon appropriate terms for good cause shown. As soon as possible after service of the petition, the Secretary of State shall transmit the original or a certified copy of the entire record of the proceedings under review to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact. The court may affirm the decision or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions of the Secretary of State are:

(1) In violation of the Constitution or laws of this state;

(2) In excess of the statutory authority of the Secretary of State;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

An aggrieved party may obtain a review of any final judgment of the superior court by the Court of Appeals or the Supreme Court, as provided by law.

And this section of the law describes the ways an agency dispute can reach the OSAH.

O.C.G.A. § 50-13-41
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 2.  OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-41  (2011)

§ 50-13-41.  Hearing procedures; powers of administrative law judge; issuance of decision; review

(a)(1) Whenever a state agency authorized by law to determine contested cases initiates or receives a request for a hearing in a contested case which is not presided over by the agency head or board or body which is the ultimate decision maker, the hearing shall be conducted by the Office of State Administrative Hearings, and such hearings shall be conducted in accordance with the provisions of this chapter and the rules and regulations promulgated under this article.

(2) An administrative law judge shall have the power to do all things specified in paragraph (6) of subsection (a) of Code Section 50-13-13.

(b) An administrative law judge shall have all the powers of the referring agency with respect to a contested case. Subpoenas issued by an administrative law judge shall be enforced in the manner set forth in paragraph (7) of subsection (a) of Code Section 50-13-13. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13.

(c) Within 30 days after the close of the record, an administrative law judge shall issue a decision to all parties in the case except when it is determined that the complexity of the issues and the length of the record require an extension of this period and an order is issued by an administrative law judge so providing. Every decision of an administrative law judge shall contain findings of fact, conclusions of law, and a recommended disposition of the case.

(d) Except as otherwise provided in this article, in all cases every decision of an administrative law judge shall be treated as an initial decision as set forth in subsection (a) of Code Section 50-13-17, including, but not limited to, the taking of additional testimony or remanding the case to the administrative law judge for such purpose. On review, the reviewing agency shall consider the whole record or such portions of it as may be cited by the parties. In reviewing initial decisions by the Office of State Administrative Hearings, the reviewing agency shall give due regard to the administrative law judge’s opportunity to observe witnesses. If the reviewing agency rejects or modifies a proposed finding of fact or a proposed decision, it shall give reasons for doing so in writing in the form of findings of fact and conclusions of law.
(e)(1) A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision. If a reviewing agency fails to reject or modify the decision of the administrative law judge within such 30 day period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.

(2) A reviewing agency may prior to the expiration of the review period provided for in paragraph (1) of this subsection extend such review period by order of the reviewing agency in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within such period. Any such order shall recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within such review period. Any such extension by the reviewing agency shall be for a period of time not to exceed 30 days. Prior to the expiration of the extended review period, the review period may be further extended by further order of the reviewing agency for one additional period not to exceed 30 days if unusual and compelling circumstances render it impracticable to complete the review within the extended review period. Such further order further extending the review period shall likewise recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within the review period as previously extended. If a reviewing agency fails to reject or modify the decision of the administrative law judge within the extended review period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.

(3) An agency may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further agency action and without expiration of the 30 day review period otherwise provided for in this subsection.

As I said, I didn’t know which route got us to ‘here.’

I am not privy to what chain of events preceded this hearing or, to the documents previously presented to the Secretary; I have no idea how this case reached the administrative hearing level. But, obviously, Farrar must have failed to persuade Kemp to remove Obama’s name from the ballot in that state’s 2012 Democratic Presidential primary. Farrar disagreed with that decision. Under GA law, this led to the administrative hearing. Orly subpoenaed Obama to appear at the hearing in order to provide testimonial evidence which would support her client’s claim that by refusing to do as asked, that is, to remove Obama’s name from the primary ballot; the SoS had broken the law.

WITNESS FOR ORLY’S PERSECUTION or MUCH ADO ABOUT ABSOLUTELY NOTHING

Then, I read Mr. Jablonski’s letter to Secretary Kemp, withdrawing from these administrative proceedings; and Secretary Kemp’s reply. (H/T nolu chan.)

View this document on Scribd

Now, I know this case ended up in front of the ALJ not as the result of an adverse decision against Mr. Farrar by the SoS. Evidently, Mr. Kemp had never issued such ruling but only referred the matter directly to the OSAH. How do I know?

Because Attorney Jablonski referred to Secretary Kemp’s “hearing request.” That is, the request for hearing did not come from Farrar but from Secretary Kemp.

And I know why Mr. Kemp wrote what he did.

I regret that you do not feel that the proceedings are appropriate, my referral of this matter to anadministrative law judge at OSAH was in keeping with Georgia law, and specifically O.C.G.A. § 21-2-5.

First, let me remind you that in yesterday’s post, I referenced a part of the law which states, the authority vested in OSAH is limited by § 50-4-3.

O.C.G.A. § 50-13-40

GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 2.  OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-40  (2011)

§ 50-13-40.  Office created; chief state administrative law judge

(a) There is created within the executive branch of state government the Office of State Administrative Hearings. The office shall be independent of state administrative agencies and shall be responsible for impartial administration of administrative hearings in accordance with this article. The office shall be assigned for administrative purposes only, as that term is defined in Code Section 50-4-3, to the Department of Administrative Services.

Now, since most of you evidently didn’t bother to look up § 50-4-3; I re-print the law here, in its entirety.

O.C.G.A. § 50-4-3
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 4.  ORGANIZATION OF EXECUTIVE BRANCH GENERALLY
O.C.G.A. § 50-4-3  (2011)

§ 50-4-3.  Assignment for administrative purposes only; authorities to retain separate identities

(a) An agency assigned to a department for administrative purposes only shall:

(1) Exercise its quasi-judicial, rule-making, licensing, or policy-making functions independently of the department and without approval or control of the department;

(2) Prepare its budget, if any, and submit its budgetary requests, if any, through the department; and

(3) Hire its own personnel if authorized by the Constitution of this state or by statute or if the General Assembly provides or authorizes the expenditure of funds therefor.

(b) The department to which an agency is assigned for administrative purposes only shall:

(1) Provide record keeping, reporting, and related administrative and clerical functions for the agency;

(2) Disseminate for the agency required notices, rules, or orders adopted, amended, or repealed by the agency;

(3) Provide staff for the agency subject to paragraph (3) of subsection (a) of this Code section; and

(4) Include in the departmental budget the agency’s budgetary request, if any, as a separate part of the budget and exactly as prepared and submitted to the department by the agency.

(c) Whenever any authority is assigned for administrative purposes, it means only that the state department through which the authority deals with the state shall be that department to which the authority is assigned. Any authority created by state law shall retain its separate identity as an instrumentality of the state and a public corporation. The department to which an authority is assigned is authorized, only with the approval of the authority, to perform for such authority any or all of the functions set forth in subsection (b) of this Code section.

This means that, when the SoS asks (through a referral) the OSAH to issue a finding in a disputed case; it is essentially engaging OSAH as a consultant. In this case, Secretary Kemp merely shifted the burden of addressing the complaint brought to his office by Mr. Farrar; to its consulting branch, OSAH, for reasons about which I will not speculate in this article, which is already too long.

BUT THE EXECUTIVE AUTHORITY TO DETERMINE WHOSE NAME GOES ON THE BALLOT IS ALWAYS VESTED IN THE OFFICE OF THE SECRETARY OF STATE, AND NOT OSAH.

In short, Secretary Kemp tried to avoid dealing with this issue by relying on OSAH, consultants for his office, to provide some political cushioning for his conduct. But now that Mr. Jablonski has opted out of the circus; he is (seemingly) protesting, at least in public, the fact the issue has been tossed right back in his lap.

Trust me; the outcome would have been the same, either way.


THERE COULD BE a LOGICAL EXPLANATION

June 29, 2011

© 2011 jbjd

Not every procedural inconsistency that occurred between the 2008 election cycle and previous elections, is definitive evidence of fraud, let alone proof that such fraud occurred.

I received this comment today from HawaiiSurfer, bemoaning the fact that HI Lt. Gov. Brian Schatz (D), formerly Chair of the HI Democratic Party in 2008; has gotten away with election fraud in relation to the wording of the 2008 D Certification of Obama’s Nomination.  But, HawaiiSurfer got it wrong; and those of you who regularly read my blog know s/he got it wrong.  Here’s that comment, in its entirety.

Brian Schatz should not be allowed to waltz scot-free on his signature and wording on the 27 August 2008 memo in question.  Our country has gone down a road where our children look up and wonder if anyone in leadership has integrity.  Few leaders have touched an honest approach to the shadowy skullduggery surrounding the 2008 election…And the world is just suppose to be okay with it.  Someone needs to call Brian out publicly for signing this form and the wording he knew was in it.  As now our Lt Governor in Hawaii, Brian needs to come clean on why he approved and authorized this release.  Where has the ethical conscience and compass of our government gone?  Forget what the media calls the birth issue, this has to do with why Brian validated for our state the national democratic presidential candidate while “clearly omitting” the authentication that the candidate was Constitutionally qualified.  In stark contrast, two predecessors from Brian’s party, Brikwood Galuteria and Alfred Lardizabul, did the right thing by clearly certifying John Kerry in 2004 and Al Gore in 2000 as Constitutionally qualified candidates.  If we went back further in time, we’d probably find Brian’s actions as Democratic Party Chair here are in clear contrast to far more than just documentation of the last few presidential elections.  Brian most likely is not to fault in everything related to this.  Many hands across our nation appear to have been deep in the cookie jar.  The democratic party was fed a bad deal with what is most likely one of the biggest frauds in American history.  Good people should have stopped it.  Brian Schatz seems like a wonderful person.  I’m sure Brian has done many great things for our communities and state, but that does not excuse any elected or appointed leader from actions of this weight and consequence.

Brian Schatz signs official campaign document showing missing statement that presidential candidate was Constitutionally qualified.
(link omitted by jbjd)

Our children and neighbors deserve much better.  Our country dies when we let go of our conscience.  Unfortunately, Brian may end up like Blago.  Behind bars.

I began responding to this comment when I realized, I had written all of this before. After a brief search I found BACK UP, BIRTHERS! which contained a well-developed explanation of the inconsistencies related to the 2008 HI Certification, none of which lends itself to a presumption of fraud, certainly not on a state level.

*******************************************************************************************************************************************************

(beginning of excerpt)

Not understanding my work or the context of these Certifications, she, too, invented a cottage conspiracy industry related to the mistaken uniqueness of the HI Certification of Nomination, with a twist.  See, she uses the fact the DNC Certification of Nomination contains the line that Obama is Constitutionally eligible for the job; to support her argument, the HI D Party refused to put that line in their state Certification because they knew Obama is not a NBC.  How does she know this?  Well, she retrieved both the DNC and the HI D Party Certifications for 2000, 2004, and 2008.  In 2000, the DNC document began without the eligibility line, which was obviously typed in after the original document was completed.  The HDP document in 2000 contained the same eligibility line.  In 2004, the DNC document did not contain the eligibility line; the HDP document did.  In 2008, the DNC document did; the HDP document did not.

butterdezillion points out all of the variables were the same – the election law was the same, Brian Schatz was the HI D Party Chair; and Joseph Sandler was the General Counsel to the DNC – and argues, on this basis, one would expect that the Certifications would have been processed in the same manner.  Since they were not, she concludes, Mr. Schatz “refused” to swear to Obama’s Constitutional eligibility for President because he knew the man was not a NBC.

Only, she is wrong.  For one thing, all of the material variables were not the same.  But that fact has not stopped the ‘usual suspects’ from piggy-backing on her mistakes.  Even worse, her work now specifically contains a reference to research done by “jbjd,” thus arguably giving the false impression, again, my work is the basis for her soon-to-be-exposed-as-discredited findings.

Basically, here is her argument.  Looking at the dates of these Certifications, she found, in 2000, the DNC Certification was dated 08.17.00; HDP 09.08.00.  In 2004, DNC 07.29.04; HDP 08.31.2004.  In 2008, DNC 08.28.08; HDP 08.27.08.  Following is her invented rationale as to what happened in 2008:

So instead of acting independently a month after the National Convention and confirming Constitutional eligibility as in the past, the HDP acted before the Convention to take out the eligibility language from their standard certificate, signed it, and gave it to Joe Sandler before Pelosi had signed anything – signaling to the DNC that they were not going to certify eligibility. They coordinated their efforts with Joe Sandler, who sent both documents together to the HI Elections Office. Apparently Sandler, Pelosi, and Germond all knew that Hawaii’s special certification was necessary because the HDP refused to certify Obama’s eligibility.

Let me just point out one of butterdezillion’s most glaring mistaken presumptions.  Joseph Sandler did not submit both the DNC and the HDP documents “together” to the HI Elections Office.   (This probably explains why his cover letter only references the DNC Certification and not the HDP Certification, and why he uses the word “Certification,” in the singular.)  And how do I know this?  Because way back in January 2009, I asked the HI Election Office.  That is, I asked Justin Riggs to ask them.

See, in December 2008 I learned that Justin Riggs had been corresponding with elections officials in various states asking them to provide the paperwork submitted by the D and R parties to get their respective Presidential nominees on the general election ballot.  Justin posted his paperwork.  I looked at the HI documents – these are now posted on my web site, along with Justin’s correspondence – and had questions.  So, I asked Justin to ask HI election officials, since he had already established a rapport. Especially I was interested in learning when they had received these Certification documents.  Because among those documents I got from him were just the DNC Certification; the HDP Certification; and the HDP cover letter.  Joseph Sandler’s cover letter was missing.  And as you can see from the documents posted on butterdezillion, his cover letter is the only one with a ‘date received’ stamp.

(Actually, the 2008 documents butterdezillion posted on her blog in September 2010 are linked to this blog, http://moniquemonicat.files.wordpress.com/2008/12/hawaii-response.pdf, where they were first posted almost 2 (two) years ago.  The date, January 06, 2009 01:17p in the upper left corner, designates a FAX transmission.)

Mr. Sandler’s cover letter, dated August 28, was stamped received by the HI Elections Office on September 03.  And that cover letter was the only one of those DNC/HDP Certification documents received by the HI Election Commission for Obama that received a Date Stamp.  Consequently, as the documents I received from Justin did not contain Mr. Sandler’s cover letter, none of his documents had a stamp evidencing it had even been received by the HI Elections Office!  But obviously, the documents were received, as election officials did print Obama’s name on HI’s general election ballot.  (The date these documents were received didn’t matter, for the same reason, that is, I knew they had been received in time.)  Just to satisfy my curiosity, I asked Justin to ask officials how they received these DNC and HDP documents.  Here is his reply to me.

jbjd,
Here you go… it looks like the HI Democratic party forwarded both documents to the Elections Office.
Hope that helps. Keep me posted on your progress.
Justin—
From: Carolyn.L.Roldan@hawaii.gov <Carolyn.L.Roldan@hawaii.gov>
Subject: Re: Response to December 12, 2008 Request
To: “Justin Riggs” <juriggs@.xxxxx.com>
Date: Friday, March 6, 2009, 1:44 PM
Dear Mr. Riggs,
Both documents were forwarded by the Democratic Party of Hawaii.

Sincerely,

Kevin B. Cronin

Now that I see Mr. Sandler’s cover letter, Mr. Cronin’s answer makes even more sense.  That is, between his use of the singular “Certification”; and the delay between the date his letter was written and the date this was received by the HI Election Office’ it would make sense that the DNC gave the documents to the HDP who then forwarded these to the HI Elections Office.

When butterdezillion wrote her ‘seminal’ Certification article on September 10, 2010, she knew none of this.  Thus, based on her faulty assumptions about how the DNC and HDP letters of Certification reached the HI Election Office, she asks, “The question that begs an answer is: Why did the Hawaii Democratic Party refuse to certify Obama’s eligibility as they had always done to successfully place presidential candidates on the ballots before?”  And answered it with that contrived story.

A more plausible answer as to why the HDP did not add the line about Constitutional eligibility in 2008 like they had in 2004 and 2000 likely could come from anyone reading the work produced on my blog.  Here’s a hint:  what information highlighted in COUP (2 of 3) and (3 of 3) led to my conclusion, Obama and the DNC had identified which Clinton pledged delegates were from vote binding states?  Yep; it’s those state Delegate Selection Plans.  As I told you, provisions in the DNC Model Delegate Selection Plan for 2006 required, in order to obtain final approval from the RBC for state delegate selection plans for use in the 2008 election cycle, state parties were required to submit those plans to the RBC accompanied by all state statutes reasonably related to the delegate selection process. (Emphasis added by jbjd.) http://s3.amazonaws.com/apache.3cdn.net/e824f455b24c7782dc_jjm6ib44l.pdf In this way, the DNC could monitor any idiosyncratic requirements in individual states so as to ensure Obama’s name would qualify to get onto every general election ballot.

I assumed this provision was not included in the 2002 DNC model delegate selection rules to be used in the 2004 election, and that’s why the HI state party (and, presumably, state parties in other states) handled their special Certifications on their own.  Finally, I had time to check my hypothesis; and I was right.

View this document on Scribd

In other words, where changes would be required in the language of the Certification of Nomination to satisfy the law of individual states, in 2006, the DNC began assuming responsibility for all such changes.

And that would explain why in 2008 the HDP did not certify Obama’s Constitutional eligibility for office but the DNC did.

(end of excerpt)

*****************************************************************************************************************************************************

If your bona fide concern is shoring up the electoral process then, please, stop wasting time on ferreting out fraud and conspiracy where 1) none exists; and 2) this won’t make a difference to ensuring the next President is a NBC, anyway. And, do all of us a favor.  Stop buying into anything coming out of the hyperbolic factually vacuous blogs the links to which I continue to edit out on my blog!  Especially steer clear of any of those blogs which feature the people who have stolen and then, misrepresented the point of my work.  I wonder whether after yet another episode of emotional investment in a gambit which not only has no basis in fact but also was dispelled long ago on this blog; people will have become sufficiently angry to stop crediting another word from their ‘poison pens,’ anyway.


DEFINITION on DEMAND

March 16, 2011

©2011 jbjd

The Supreme Court has the final authority to interpret the Constitution.  It can set aside any law – federal, state, or local – that a majority of the justices believes conflicts with any part of the Constitution.

http://www.america.gov/st/usg-english/2008/April/20080415234710eaifas0.2570917.html

(For a more legalistic discussion of the authority of Article III courts, see http://www.law.cornell.edu/anncon/html/art3frag14_user.html#art3_sec2)

No matter how many times or how strenuously people repeat the absurd claim that the definition of NBC in the U.S. Constitution is fixed by reference to any other written work, nothing fixes a definition of NBC until the ‘fat lady holding the scales of justice sings.’

In other words, until justices on the federal appellate court weigh in with a definition in a holding in a case specifically on point.  All else is cacophony.

Lie number 1. We know what NBC means because this term is defined in Vattel’s Law of Nations.

Just for the sake of argument, let’s say, this man Vattel wrote a book entitled Law of Nations in which he pontificated as to which of the laws of various nations he would incorporate into his Utopian country, and that the term NBC is unambiguously defined within this text.  Let us further assume that before deliberating on their own treatise, better known as the U.S. Constitution, the original drafters had access to Vattel’s tome, considering such variables including the date and place of publication, language, and availability; and that they did, indeed, read his definition of NBC before drafting our Constitution.

Assuming all that, it is nonetheless absurd to make the leap of logic that says with certainty, the Drafters, having read Vattel’s definition of NBC and understood his meaning, thereby adopted his definition into their text.  Because based on this logic that insists, any subject mentioned in the Constitution evidences a  concurrence with its counterpart in Vattel’s Law of Nations; we would also have state sponsored mandatory public worship of God and banishment of minority practitioners, instead of “Congress shall make no law respecting an establishment of religion…”

http://books.google.com/books?pg=PA140&vq=religion&dq=vattel+law+of+nations&id=pBwMAAAAYAAJ#v=onepage&q&f=false

Lie number 2. We know the Drafters meant for us to follow Vattel’s definition of NBC in Article II, section 1 because they specifically referenced “Law of Nations” in Article I, section 8 (“To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations”)

Setting aside the colonial custom of capitalizing nouns, let’s assume, again, this reference in Article I, section 8 adopts Vattel’s treatment of piracy exactly as laid out in his book (as opposed to a generic standard of responding to piracy on the high seas, according to laws of various nations sailing the seas).  According to the rules of statutory interpretation, this would not only not mean,  the Drafters intended the definition of NBC to echo Vattel’s definition; but it would mean precisely the opposite!  That is, by using the reference to Law of Nations in one place in the document but not the other, the court would find the Drafters intended not to mean the definition proffered by Vattel.

“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted).  http://www.supremecourt.gov/opinions/08pdf/08-5274.pdf

That is, given that the Drafters obviously knew how to reference Vattel in one part of the Constitution, this means, if they had wanted to reference his work in another part of this legal document, they likely would have.  Yet, they failed to repeat the phrase either in Article II or anywhere else in the document.

But definitively attributing the phrase “Law of Nations” in Article I to Vattel’s text and not to a general world standard of laws, is absurd on its face.

John Jay, Alexander Hamilton, and James Madison wrote the Federalist Papers so as to persuade the special Constitutional panels in the 13 states to ratify the newly drafted U.S. Constitution to replace the inadequate Articles of Confederation.  In Paper 83, Mr. Hamilton addresses the construction of Article III, the federal judiciary, arguing for a right to trial by jury in all criminal cases but not in civil cases.  (All emphasis added.)

But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable.

http://thomas.loc.gov/home/histdox/fed_83.html

Or, just scroll back to Vattel’s own text, in which the phrase “law of nations” and permutations appear generously.

Lie number 3. We know what NBC means because this term is defined in a law review article; and the Boston Globe°; and dicta in several Supreme Court cases not directly on point.

See lie number 1.

° This lie is especially pernicious, for 2 (two) reasons.  First, it falsely implies the theories of the speaker are supported by the imprimatur of the editors of the Boston Globe! In truth, an advice column appearing in the newspaper more than 100 years ago,contained what the writer stated was his personal opinion, namely, the words “native born” and “natural born” appearing in the Constitution in relation to the word “citizen” mean two different things.  Second, it disingenuously sustains a fabricated claim that the words “native born” and “natural born” can honestly be conflated to mean the same thing and then uses the personal off-the-cuff opinion of the columnist to hyperbolically deflate such contention.  Ha, the ‘legal’ pundit pedaling this tripe calls the Globe piece a “crucially relevant article.”  Straw dogs.  As I indicated in the beginning of the present post, following  the basic rules of statutory interpretation necessarily leads to the conclusion that, because the Drafters used “native born” in one section of the document and “natural born” in another section; the courts would assume they intended “native born” and “natural born” to mean two different things!

******************************************************************************************

I cannot say what the Founders intended by the term NBC.  But I am troubled by the willingness of so many purported “patriots” to supplant reason with their interpretation of the document those Founding Patriots created. Of course, I have studied history; of course, I have studied the law. Naturally, I have opinions. But I am not the arbiter of the Constitution’s truth; and neither are any of those internet pontificators, lawyer and layperson alike, who claim otherwise.

I could not care less as to the individual interpretations people ascribe to the original intent of the Drafters; or whether they adopt a Constitutional methodology of original intent or ‘living document,’ to reach their conclusions. But I am as fearful of becoming enslaved by zealots on one side as on the other.  Let me emphasize, just because a particular lay interpretation appears to make sense to lay people does not mean it could survive critical judicial scrutiny. (Keep in mind, many of the people involved with founding this government were trained as lawyers.) If I point to a flaw with the legal methodology, this does not mean, I am pointing to a flaw in the character. That people continue to label theories of statutory construction as ‘belonging’ to one person or another scares the hell out of me. Practically speaking, the meaning of the Constitution is only ascertained when the federal bench rules, this it what it means. This is why I seldom express my personal views as to what the document means; or engage in endless speculation as to what the Constitution means. I am too busy doing actual work aimed at changing the status quo.

While there are few absolutes in interpretation, certainly we can all concede that no interpretation is valid or invalid based only on who is espousing that view.  So, in conclusion, I want to repeat my strenuous objections that some people, expressing an opposing view to the positions discussed in this article, continue to direct such dissent to me and not to the work.  I suspect these bullies are intentionally misleading people by clinging to discredited theories of Constitutional interpretation in order to sidetrack attention and energies which could be better utilized to challenge the legality of those Certifications of Obama’s nomination submitted in several ballot eligibility states.

Because in the end, Obama will not be removed from office on the basis of a legal definition of NBC, anyway.  Even if  documents available in the public record could establish the facts of his birth, which facts could then be fit into such legal definition of NBC.   Because no law required the Electors to only elect a President who meets the Constitutional eligibility for office, anyway.  But we have no such facts of birth or legal definition of NBC.  However, we definitely know the definition of “C.”  Because the SCOTUS has previously ruled on this issue in several cases directly on point.  This means, we can confront anyone who Certified to state election officials in applicable states, candidate Obama was qualified for office, with this question: on what documentary basis did you ascertain beforehand he was a U.S. Citizen?


SUBORNING SYNDICATION

March 3, 2011

©2011 jbjd

Add syndicated columnist Cal Thomas to the ever growing list of disingenuous town criers who, in the wake of President Obama’s decision the Executive branch will refrain from defending against court challenges to DoMA, are shouting a proverbial ‘the sky is falling’ warning to a captive audience ignorantly unaware in this instance, the sky is not only intact but also precisely in the place Congress (the Legislative branch of government) intended it to be.

Here are some snippets from Mr. Thomas’s latest tirade against Obama, “Obama’s duty is to enforce the law”:

President Obama has said his view of same-sex “marriage” is “evolving.” Apparently he thinks that the law should be based on a kind of Darwinian jurisprudence which allows it to “evolve” and become whatever the ruling politicians at a given moment say it is (or isn’t).How else to explain the decision by the president and his attorney general, Eric Holder, not to defend the Defense of Marriage Act, signed into law by President Clinton in 1996?

Now, you have to be real careful reading this double slight of hand.  See, Mr. Thomas begins this article by telling readers right there in the title, Obama has a duty to “enforce” laws.  But here, in the meat of his offering, he changes the word “enforce” to “defend,” correctly stating in simplest terms, Obama has decided not to defend against (court) challenges to the law (filed by aggrieved parties).  In other words, the fed will still define marriage as between same sex partners, for example, when it comes to doling out spousal benefits.

Then, he hurdles a leap and a bound by pointing readers to the false narrative, Obama based his decision that ‘this law means what he says it means’ because his ‘views on gay marriage are evolving.’  On what documentary basis did Mr. Thomas conjure up this ’cause’ and ‘effect’?

Given his recent history, it appears far more likely, Mr. Obama still opposes equal rights when it comes to sexual orientation but is just exercising this tactic because he is gearing up for the 2012 election and, having alienated a good percentage of his gay base, was ordered by his handlers to take steps to herd them back into the D fold.

For example, it took 2 (two) years to even sign into law a bill that indicates an intention to repeal DADT, notwithstanding strong bi-partisan support for the repeal from all political comers, including both  military brass, and military chaplains. Anyway, DADT is still the law of the land; and Obama has not ordered the DoJ to refrain from defending against court challenges to that law.

Despite the big congressional vote in December to repeal DADT, the law is actually still in effect. The repeal legislation doesn’t stop its implementation until 60 days after top Pentagon brass say they’re ready — and the brass say they’re still working on it, and it could take a few more months.

“The appeal is still alive and kicking because Don’t Ask Don’t Tell is still the law of the land,” said Dan Woods, a lawyer representing the Log Cabin Republicans.

“On behalf of our client, we suggested to the government that we would be willing to stay the appeal on one condition: that the government agree not to discharge any service member under Don’t Ask Don’t Tell in the meantime,” Woods told HuffPost. “And the government refused.”

Woods said the Pentagon “is continuing to investigate and process discharges under Don’t Ask Don’t Tell.”

The DOJ lawyers filed their brief Friday even though President Obama, speaking directly to gay service members when he signed the repeal legislation, hailed that December day as marking “the end of a particular struggle that has lasted almost two decades.”

http://www.huffingtonpost.com/2011/02/25/obama-court-uphold-dadt_n_828488.html

Yep, Obama failed to rescind DADT even as he answered a question regarding his views on same sex marriage by mentioning he had ‘evolving’ views.

In December, the president scored a major legislative victory (with the help of Sens. Joe Lieberman, I-Conn., Susan Collins, R-Maine, and Harry Reid, D-Nev.) in signing the repeal of the “don’t ask, don’t tell” policy, ending the practice of banning gays and lesbians from serving openly in the military.

That was quickly followed by this widely noted answer to a question about same-sex marriage at his year-end news conference in December.

“[M]y feelings about this are constantly evolving. I struggle with this. I have friends, I have people who work for me, who are in powerful, strong, long-lasting gay or lesbian unions. And they are extraordinary people, and this is something that means a lot to them and they care deeply about,” President Obama said.

“At this point, what I’ve said is, is that my baseline is a strong civil union that provides them the protections and the legal rights that married couples have. And I think — and I think that’s the right thing to do. But I recognize that from their perspective it is not enough, and I think is something that we’re going to continue to debate and I personally am going to continue to wrestle with going forward,” he added.

http://www.pbs.org/newshour/rundown/2011/02/-continued-resolve-with-eight.html

(Note that PBS gets it wrong, too, giving credit to Obama for ending DADT when the bill he signed into law only states an ‘intention’ to end the policy.  As I said earlier, the military is still enforcing the current DADT policy and the DoJ is still defending the military’s use of this policy in court.)

Then, Mr. Thomas gets really dishonest.
Imagine the reaction from the Left had George W. Bush announced his administration would no longer defend Roe v. Wade because he thought it unconstitutional and it would eventually be overturned by the Supreme Court.

As regular “jbjd” readers now know,  President Bush nominated to the SCOTUS as Chief Justice, the former Solicitor General who, under his father, President George H. W. Bush, had not only refused to defend against a court challenge to an existing government policy, but also argued against the government policy in federal court, claiming it violated the Equal Protection clause of the 14th Amendment.  See FALSE ADVERTISING.  And he had every right to do so.  Id. Not only that, in 2002, President Bush signed into law legislation which created a formal mechanism for reporting to Congress those cases in which the Executive determined to refrain from defending or enforcing any law.

This is from my Reply to a Comment by markcon, on FALSE ADVERTISING.

markcon, you (and millions of others like you) are being played. In acknowledgment that, from time to time, the Executive decides to refrain from defending (or enforcing or administering) what it considers are unConstitutional laws, Congress passed this law requiring the Executive to report its decision(s).

TITLE 28; PART II; CHAPTER 31; § 530D
§ 530D. Report on enforcement of laws
(a) Report.—
(1) In general.— The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice—
(A) establishes or implements a formal or informal policy to refrain—
(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional; or
(ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer;
(B) determines—
(i) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law; or
(ii) to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision; or
(C) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action—
(i) against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000, excluding prejudgment interest; or
(ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order (or pursuant to any modification of an agreement, consent decree, or order) that provides injunctive or other nonmonetary relief that exceeds, or is likely to exceed, 3 years in duration: Provided, That for purposes of this clause, the term “injunctive or other nonmonetary relief” shall not be understood to include the following, where the same are a matter of public record—
(I) debarments, suspensions, or other exclusions from Government contracts or grants;
(II) mere reporting requirements or agreements (including sanctions for failure to report);
(III) requirements or agreements merely to comply with statutes or regulations;
(IV) requirements or agreements to surrender professional licenses or to cease the practice of professions, occupations, or industries;
(V) any criminal sentence or any requirements or agreements to perform community service, to serve probation, or to participate in supervised release from detention, confinement, or prison; or
(VI) agreements to cooperate with the government in investigations or prosecutions (whether or not the agreement is a matter of public record).
(2) Submission of report to the congress.— For the purposes of paragraph (1), a report shall be considered to be submitted to the Congress if the report is submitted to—
(A) the majority leader and minority leader of the Senate;
(B) the Speaker, majority leader, and minority leader of the House of Representatives;
(C) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of the Committee on the Judiciary of the Senate; and
(D) the Senate Legal Counsel and the General Counsel of the House of Representatives.
(b) Deadline.— A report shall be submitted—
(1) under subsection (a)(1)(A), not later than 30 days after the establishment or implementation of each policy;
(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination; and
(3) under subsection (a)(1)(C), not later than 30 days after the conclusion of each fiscal-year quarter, with respect to all approvals occurring in such quarter.
(c) Contents.— A report required by subsection (a) shall—
(1) specify the date of the establishment or implementation of the policy described in subsection (a)(1)(A), of the making of the determination described in subsection (a)(1)(B), or of each approval described in subsection (a)(1)(C);
(2) include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination, and the identity of the officer responsible for establishing or implementing such policy, making such determination, or approving such settlement or compromise), except that—
(A) such details may be omitted as may be absolutely necessary to prevent improper disclosure of national-security- or classified information, of any information subject to the deliberative-process-, executive-, attorney-work-product-, or attorney-client privileges, or of any information the disclosure of which is prohibited by section 6103 of the Internal Revenue Code of 1986, or other law or any court order if the fact of each such omission (and the precise ground or grounds therefor) is clearly noted in the statement: Provided, That this subparagraph shall not be construed to deny to the Congress (including any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may seek, subsequent to the submission of the report; and
(B) the requirements of this paragraph shall be deemed satisfied—
(i) in the case of an approval described in subsection (a)(1)(C)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the legal and factual basis or bases for the settlement or compromise (if not apparent on the face of documents provided); and
(ii) in the case of an approval described in subsection (a)(1)(C)(ii), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the injunctive or other nonmonetary relief (if not apparent on the face of documents provided); and
(3) in the case of a determination described in subsection (a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of the proceeding, suit, or action.
(d) Declaration.— In the case of a determination described in subsection (a)(1)(B), the representative of the United States participating in the proceeding shall make a clear declaration in the proceeding that any position expressed as to the constitutionality of the provision involved is the position of the executive branch of the Federal Government (or, as applicable, of the President or of any executive agency or military department).
(e) Applicability to the President and to Executive Agencies and Military Departments.— The reporting, declaration, and other provisions of this section relating to the Attorney General and other officers of the Department of Justice shall apply to the President (but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order), to the head of each executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States Code) that establishes or implements a policy described in subsection (a)(1)(A) or is authorized to conduct litigation, and to the officers of such executive agency.
http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00000530—D000-.html

(FYI, Congress passed this ‘reporting’ law back in 2002. http://www.copyright.gov/legislation/pl107-273.html) (Following this link and its successor, above; you can see, first the text appears in the numbered “public law” and then, the law is codified into the appropriate spot in the U.S. Code.)

ADMINISTRATOR

I zealously try to post information that will inform but not titillate.  Then again, with all due deference to Mr. Thomas, I am only a blogger and not a syndicated columnist.


FALSE ADVERTISING

February 26, 2011

©2011 jbjd

Based on the dozens of story lines featured on the subject on the site, DRUDGE REPORT clearly knows, for years now, citizens convinced Barack Obama is not a NBC crave his impeachment.  (Actually, most have called for ‘something’ other than impeachment that will get him out of office, mistakenly believing, assuming he is Constitutionally ineligible to be President, he was unlawfully elected, anyway and, therefore, cannot be removed as the CiC through the only process prescribed in the Constitution.)  So, one could naturally assume, Mr. Drudge printed for their benefit these banner headlines, in red, replete with dome light, announcing, “‘ Gingrich gives Obama ‘impeachment’ warning’.”  Indeed, the link to the Newsmax article died through overuse.  Even I, chuckling as I clicked, knowing, had Gingrich mentioned “impeachment” in the context of “ineligibility” Drudge would have said so on his site; nonetheless joined the presumably millions of others, like lemmings to the sea, to confirm I had been intentionally misdirected.

I had confirmed on other sites, Gingrich’s use of the word ‘impeachment’ was in no way related to Obama’s Constitutional eligibility for office – no surprise there – but to instructions to the DoJ to decline to actively defend against challenges to the DoMA. Then, I got through to Newsmax.  Here was their headline:

Gingrich: If Palin

Took Obama Actions,

There Would Be Calls

for Impeachment

Gingrich: If Palin Took Obama Actions, There Would Be Calls for Impeachment
Disingenuously clarifying, he wasn’t suggesting Obama should be impeached, anyway, Gingrich complained that when it comes to the conduct of the left versus the right, there is a lot of hypocrisy.  Okay; but then, he went ‘a bridge too far.’

Gingrich slammed Obama for his decision, telling Newsmax that he is not a “one-person Supreme Court” and his decision sets a “very dangerous precedent” that must not be allowed to stand…. Gingrich adds: “I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. (Emphasis added.) I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”

See, here’s the problem with hyperbole.  It is so easily verifiable as untrue.  “Very dangerous precedent” (as in, happening for the first time)?  And, heaping insult onto injury, characterizing the decision not to spend more money defending against a law some federal courts have already ruled is unconstitutional (Gill et al v. Office of Personnel Management et al) as deciding to”personally suspend a law”?

Gingrich again exposes his ethical vacuity by aiming this garbage to gullible receivers.  Of course, I only characterize him as the scoundrel he is in this instance, because I can prove it.

For example, I find absolutely no evidence in the public record that U.S. Representative Gingrich mentioned the word impeachment in relation to the decision of President George H. W. Bush, in 1992 to refrain from defending an FCC policy “to give minorities an edge when it came to the awarding of radio and television broadcast licenses.” http://www.washingtonpost.com/wp-dyn/content/article/2005/09/07/AR2005090702394.html (The FCC’s policy was adopted at the urging of Congress, and the solicitor general’s office usually defends agencies such as the FCC against legal challenges.” Id.)

Ha, when the case finally reached the SCOTUS – Metro Broadcasting v. FCC -  the U.S., on the legal advice of (Acting) Solicitor General John Roberts, actually argued against the government policy, claiming it violated the Equal Protection clause of the 14th Amendment. Id. The SCOTUS disagreed.  (Mr. Roberts was later nominated to the SCOTUS by President George W. Bush.)

But neither refraining from prosecuting a challenge to an existing law nor arguing against an existing law is illegal.

Presidential Authority to Decline to Execute Unconstitutional Statutes,” drafted in 1994, isa memorandum to the Honorable Abner J. Mikva, Counsel to the President (George H. W. Bush), written by Assistant Attorney General Walter Dellinger,  discussing the President’s constitutional authority to decline to execute unconstitutional statutes.  Here are just a few findings and conclusions:

The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems.The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.

“…we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.”

Summing up, Gingrich did not propose impeaching President George H. W. Bush either for refusing to defend against a race-based preference policy in awarding broadcast licenses or for opposing the existing policy in the U.S. arguments to the high court.  And based on his assumption Obama’s conduct is wedded in support for equal rights for gays and lesbians; he suggests the left would call for impeachment if President Palin ‘unilaterally’ ordered the DoJ to refrain from enforcing a law to which she was philosophically opposed. 

But as history shows, Presidents do this all the time. And Dr. Gingrich (Ph.D., History) knows this.

P.S.

The DRUDGE REPORT proudly boasts its daily hits are in the millions – “VISITS TO DRUDGE 02/25/11, 031,840,693 IN PAST 24 HOURS" - presumably netting significant commercial revenues.  Imagine how much smarter Mr. Drudge (and his colleagues) could leave the body politic if only he would spend some of that money educating his readers instead of just titillating us.  

I haven’t reached 1,000,000 hits since I started this blog in August 2008!  Yet I spent hours putting together this post, all by myself, for free.

Enjoy.


HISTORICAL PERSPECTIVES

February 15, 2011
©2011 jbjd

I was only marginally familiar with Historian Niall Ferguson because of his involvement with the brilliant PBS Series, The Ascent of Money.  So, when I viewed these remarks he made in response to a question about the President’s “policy” in the Middle East focusing on Egypt – a “flip followed by a flop” – I immediately determined to post the video here.  (Several hours later, after figuring out, MSNBC does not post directly to WordPress; setting up a VodPod account; and maneuvering through their interface with the WordPress platform, here it is.  Now, you  just have to click on the link below this image, to view video.)

Morning Joe: Ferguson: Obama’s foreign policy f…, posted with vodpod

But hearing Mr. Ferguson praise the foreign policy creds of Henry Kissinger – National Security Advisor under President Nixon and Secretary of State under both Nixon and President Ford – I was reminded that understanding history requires (at least) an awareness of the contextual history of the historian.  See, my disillusionment with the Nobel Peace Prize did not occur in 2010 with Obama but with Kissinger, in 1973.  http://nobelprize.org/nobel_prizes/peace/laureates/1973/ Here is a pretty good amalgamation of the lowlights of Mr. Kissinger’s forays into foreign policy territory from a site I just discovered called zpub, based in SF, CA.

In the minutes of a secret 1975 meeting of the National Security Council attended by President Ford reveal Henry Kissinger grumbling, “It is an act of insanity and national humiliation to have a law prohibiting the President from ordering assassination.”LOST CRUSADER: The Secret Wars of CIA Director William Colby, by John Prados, Oxford University Press, 2003

The February and March 2001 issues of Harper’s Magazine feature a series by Christopher Hitchens on the case for charging Kissinger with War Crimes. Part I: The making of a war criminal Part 2 will feature an extensive section on East Timor.

Christopher Hitchens’ Trial of Henry Kissinger: A Review By Mike McGlothlin …

Hitchens presents a rather straightforward argument that establishes two seemingly undeniable propositions: on at least one occasion, Henry K. conspired to commit murder, and that on numerous other occasions, Henry K. was the primary force behind certain acts that could quite plausibly be considered war crimes. The case for Henry K. as murder conspirator is what Hitchens calls a “lay-down” case, i.e., one that stands out for its clear facts and clear law. The murder victim is General Rene Schneider, who was the Commander in Chief of the Chilean Army, whom Hitchens misidentifies as the Chilean “Chief of Staff.”; According to Hitchens (and the 09 September, 1970 minutes of the “40″ Committee, the Kissinger chaired secret panel that oversaw U.S. covert operations), the Chilean military had a strong tradition of neutrality in political affairs, a rarity on the South American continent. General Schneider was known as an officer committed to upholding the Chilean constitution and therefore opposed to the rumored incipient coup against newly elected Socialist President Salvador Allende by a right wing would-be junta of current and former Chilean military officers. Using U.S. Government communications cables from the CIA and documents from the State Department, and White House, Hitchens relates the facts of Kissinger’s direct involvement in the direction, planning, financing, and general support by the organs of the U.S. Government in the plot to remove General Schneider.

LA Weekly: WLS Review: Henry: Portrait of a Serial Kissinger

How You Can Do What the Government Won’t: Arrest Henry Kissinger – Manhattan’s Milosevic, The Village Voice, Week of August 15 – 21, 2001

… bring Henry Kissinger to justice for crimes against humanity. Consider, though, what happened to the last people to talk even jokingly about plans for a citizen’s arrest of the real-life model for Dr. Strangelove. … An indictment of Henry Kissinger for genocide, crimes against humanity, and war crimes would include (but not be confined to) the following. …

Henry Kissinger: War Criminal or Old-Fashioned Murderer? – Welcome to the “Henry Kissinger: Unindicted Terrorist” file! …

Incredibly, Henry Kissinger—the man who rivals Pol Pot for the dubious honor of being the person responsible for the death of the largest number of innocent people in South East Asia (and far surpasses Pol Pot in criminality when one factors in Kissinger’s various levels of responsibility for wholesale slaughter and repression in other parts of the world)—still wields significant power in the United States; but his role as eager facilitator of mass murder, totalitarian repression and other atrocities is never discussed in polite society.

Masterminded the murder of as estimated 600,000 peasants in Cambodia (the “Secret bombing”)

Pol Pot And Kissinger On war criminality and impunity by Edward S. Herman

President Ford and Secretary of State Kissinger gave the go ahead to Suharto’s invasion of East Timor and subsequent massive war crimes there, and the same Kissinger, who helped President Nixon engineer and then protect the Pinochet coup and regime of torture and murder, and directed the first phase of the holocaust in Cambodia (1969-75) …

The time was September 11, 1973. The country was Chile. The event was the bloody overthrow of a democratic government. And the criminals were Henry Kissinger, Richard Nixon, The CIA, and Chilean Dictator Augusto Pinochet. Pepsico, ITT, and other large U.S. corporations were also guilty parties in these crimes against the State and against The People of Chile. The Pornography of Power

TOBY HARNDEN, TELEGRAPH, LONDON: Washington reacted furiously to a request by Chilean judges for Henry Kissinger, the former secretary of state, to answer questions about an American journalist killed during the 1973 coup in Chile. A Bush administration official condemned the Chilean supreme court decision to send questions to Dr Kissinger, saying the move increased unease about the proposed International Criminal Court in The Hague. The administration source said: “It is unjust and ridiculous that a distinguished servant of this country should be harassed by foreign courts in this way. The danger of the ICC is that, one day, US citizens might face arrest abroad and prosecution as a result of such politically motivated antics.” . . . In its ruling, Chile’s supreme court said a list of questions should be sent to the US supreme court with regard to Dr Kissinger’s knowledge of the circumstances surrounding the death of Charles Horman, a journalist arrested by troops loyal to General Augusto Pinochet. His body was identified in a mortuary weeks later . . . The Chilean order came less than two months after French detectives delivered a court summons to Dr Kissinger, who was visiting Paris, asking him to testify about the disappearance of French nationals in Chile . . . In another case, a judge in Argentina has ordered Dr Kissinger to testify in a human-rights trial about a 1970s plan by South American governments to kidnap and kill Left-wing critics. [news/2001/08/01]

The US involvement in coup planning began even before Allende’s election victory, under the code-name FUBELT, with action plans prepared for Kissinger’s consideration. One group of officers working under CIA direction carried out the assassination of General Rene Schneider, a pro-Allende officer, in an unsuccessful attempt to spark a full-scale coup before Allende could take office. Can Henry Kissinger be Extradited?

He serves his consulting firm, Kissinger Associates, serves as a sort of private National Security Adviser and Secretary of State to about 30 major corporations around the world, such as American Express, Freeport-McMoRan Minerals, Chase Manhattan Bank, Volvo … Walter Isaacson on Booknotes

According to the new book Kissinger, by Walter Isaacson, published in 1992 by Simon & Schuster, ASEA Brown Boveri (page 733) had a contract or project arrangement with Henry Kissinger’s money-making consulting firm, Kissinger Associates, in 1990. According to this fascinating book, Kissinger started his consultancy in July 1982 with “$350,000 lent to him by Goldman Sachs and a consortium of three other banks.” Some of the people Kissinger hired to work for him were Brent Scowcroft, former national security adviser, and Lawrence Eagleburger “who was lured aboard as president in June 1984 after serving as undersecretary of state”. Both Snowcroft and Eagleburger left Kissinger Associates in 1989 to join President Bush’s administration. Kent Associates is a subsidiary of Kissinger Associates. On pages 733-734 a list of some of Kissinger’s corporate clients include, aside from ABB: Shearson Lehman Hutton, Atlantic Richfield, Banca Nazionale del Lavora (BNL) “a Rome bank that made illegal loans to Iraq”; Fluor; Hunt Oil; Merck & Co.; Union Carbide. http://www.workonwaste.org/wastenots/wn218.htm

The Iranian: Opinion, Kissinger, Good will – From “The Oil Deal With Iran” by Henry Kissinger, distributed by the Los Angeles Times Syndicate and published in The Washington Post (October 28, 1997).
Chapter 9 – An Abridged History of the United States – . This material rested on illegal wiretaps ordered by Henry Kissinger, and it turned up in John Ehrlichman’s office.
Kissinger, Iraq, BNL

Kissinger was born in Fuerth, Germany, on May 27, 1923, came to the United States in 1938, and was naturalized a United States citizen on June 19, 1943. He speaks French and German.

Kissinger is married to the former Nancy Maginnes and is the father of two children [Elizabeth and David] by a previous marriage. First wife, Ann Fleischer.

Henry and Nancy Kissinger have a house in Kent Connecticut.

On American Express Board of Directors.

The Chairman of Kissinger McLarty Associates is Dr. Henry Kissinger. Washington, D.C.-based Kissinger McLarty Associates is an affiliate of Kissinger Associates, Inc., which is headquartered in New York City. GlobalNet Retains Kissinger McLarty Strategic Consulting Firm … “The firm of Kissinger, McLarty & Richardson epitomizes Washington, D.C. at its worst – sleazy ex-administration officials, feeding off special influence and power and then … – Larry Klayman from Judicial Watch KISSINGER, McLARTY & RICHARDSON

Kissinger Associates, Inc.
350 Park Avenue
New York, NY 10022
(212) 759-7919

IF YOU HAVE ANY INFORMATION CONCERNING THIS PERSON, PLEASE ADD IT HERE

DIRECTOR WORLD BUREAU OF TRUTH DEPARTMENT OF INJUSTICE

I looked up Mr. Ferguson.  Selfishly, I wish I had not. Turns out, Mssrs. Ferguson and Kissinger go way back.

In 2009, the International Republican Institute (“IRI”), Chaired for the past 2 (two) decades by Sen. John McCain, awarded Henry Kissinger their Freedom Award.  In his opening remarks, Sen. McCain noted that instead of the usual presentation of formal remarks, the honoree has agreed to participate in a discussion with interviewer Dr. Niall Ferguson, Laurence A. Tisch Professor of History at Harvard College.  McCain, referring to the interviewer by his first name, relates in his bid for the Presidency, “…the two advisers I wish I could have spent more time consulting… are the two distinguished historians we are about to hear from.”  (Note:  the UK Times also reports, Mr. Ferguson quit the McCain campaign to advise candidate Barack Obama. http://www.dailymail.co.uk/news/article-1249095/)

I only anticipated Obama would be disastrous for foreign policy, especially in the middle east, and tried to warn others;  based on his limited record related to foreign policy; the people who historically had influenced his life in relation to foreign affairs; as well as the people he had chosen to advise him on foreign policy when he was still only the D Corporation Presidential nominee wannabe.  (I didn’t get past Samantha Power.)
05/09/2008 – 8:10am EDT | jbjd

One of the several reasons I support Senator Clinton for the Office of President of the United States is her practical multi-step approach to solving our country’s problems. For example, addressing complaints and concerns about the high price of gas, I understood Senator Clinton to say that, short-term, we can ease consumers’ burden by imposing a gas tax holiday and shifting the burden to the oil companies, through a tax on windfall profits. Long term, she proposed conservation and sanctioning OPEC through the WTO.

One of the several reasons I do not support Senator Obama for the Office of President of the United States is that he omits from his list of ‘qualifications’ to the office, the only experience I find that could credibly contribute to a claim of his ability to lead the country, that is, his stint as the head of the Annenberg Challenge. This is the educational program set up by his friend, the self-promoting terrorist, William Ayers, who hired his inexperienced pal to run the show. (And because his chief foreign policy adviser, Samantha Power, advocated in 2003 that the President should unilaterally invade Israel to establish a Palestinian state because, to paraphrase, ‘powerful lobbies in this country would otherwise prevent such a move’. And because he gave Senator Clinton the finger.)

http://www.tnr.com/article/politics/let-them-eat-arugula

jbjd, on July 27, 2008 at 2:35 am said:Austin Goolsbee is still BO’s chief economic adviser. But he did shove Mr. G onto the hood of the bus by claiming the only reason he lied that his staff hadn’t met with the Canadians to discuss NAFTA is that Mr. Goolsbee, who met with the Canadians, hadn’t told him.

http://riverdaughter.wordpress.com/2008/07/26/what-is-wrong-with-barack-obama/

By jbjd – May 8, 2008 11:51:22 AM ET

Is anti-Semitism not a deal breaker for Democrats endorsing Barack Obama for the Office of President of the United States because he is bi-racial?

If I am a member of and a major financial contributor to a church whose minister revels in the company of Louis Farrakhan; traveled with him to confer with the leader of an anti-Semitic terrorist regime; and, in 2007, proclaimed he is the “Man of the year; all the while touting him as my spiritual mentor, it is safe for you to assume, I am not too crazy about the Jews. And if I am running for the Office of President of the United States in 2008; and I select as one of my advisers Samantha Power, who in 2003 published a paper at Harvard in which she advocated unilaterally breaching Israel’s sovereignty to create a Palestinian state (because otherwise, to paraphrase, ‘powerful lobbies in this country will never permit such an establishment’), then it is safe for you to assume, I haven’t changed my mind.

For your information, here’s how I learned about Samantha Power. I figured checking out the staff who advise Candidate Obama would inform me what to expect of a President Obama (assuming he would staff the White House with these same people). I got their names from his web site and then searched the internet. In this way, over countless hours, I educated myself about the candidate, learning enough about him to be certain, he would never earn my vote.

http://my.democrats.org/page/community/post/jbjd/ChN7

jbjd May 07, 2008 at 7:04PM

Will Oregonians support an anti-Semite for the Office of President of the United States, because he is black?If I am a member of and a major financial contributor to a church whose minister revels in the company of Louis Farrakhan; traveled with him to confer with the leader of an anti-Semitic terrorist regime; and, in 2007, proclaimed he is the “Man of the year, all the while touting him as my spiritual mentor, it is safe for you to assume, I am not too crazy about the Jews. And if I am running for the Office of President of the United States in 2008; and I select as one of my advisers Samantha Powers, who in 2003 published a paper in which she advocated unilaterally breaching Israel’s sovereignty to create a Palestinian state (because otherwise, to paraphrase, ‘powerful lobbies in this country will never permit such an establishment’), then it is safe for you to assume, I haven’t changed my mind.

Did your newspaper know about Samantha Power? If so, why didn’t you print the story? If not, why didn’t you know? For your information, here’s how I learned about Samantha Power. I figured checking out Candidate Obama’s advisers would inform me what to expect of a President Obama (assuming he would staff the White House with these same people). I got their names from his web site and then searched the internet. In this way, over countless hours, I educated myself about the candidate, learning enough about him to be certain, he would never earn my vote.

http://blog.oregonlive.com/breakingnews/2008/05/portland_democratic_presidenti/886/comments-newest.html

But then again, I am not a noted  historian.


COMMUNICATING CLYBURN’S QUID PRO QUO for CAPTURING SOUTH CAROLINA’S PRESIDENTIAL PRIMARY for OBAMA

October 31, 2010

© 2010 jbjd

“Communicating Clyburn’s Quid Pro Quo for Capturing South Carolina’s Presidential Primary for Obama” does not dwell on whether House Majority Whip  Jim Clyburn arranged for the SC Democratic Party to ‘obtain permission’ from the DNC to move the date of their Presidential preferential primary to the head of the line by capitalizing on the state’s racial “diversity.” The documentary record is clear, he did.

This article does not debate whether Mr. Clyburn subsequently unleashed an orchestrated race-baiting campaign  against both Bill and Hillary Clinton to resuscitate Obama’s flailing run at stealing the D Presidential nomination.  Judging only by all of the evidence available in the public record, he did that, too.  (Read here, and here.)

Rather,this article just exposes Clyburn’s real reason why.

Background

A lot of people forget, FL and MI were not the only states that bumped up their Presidential preference primaries in 2008, ahead of the DNC’s schedule.  SC did, too.  Only, unlike FL and MI, Clinton strongholds that were punished for their infraction, SC was actually encouraged to break the rules.

Briefly, the Democratic National Committee’s Commission on Presidential Nomination Timing and Scheduling decided to add one or two early primaries (“pre-window,” or before February 5, 2008) in states with “a significant Hispanic population” (Western state) and “a significant African American population” (Southern state).  http://www.gwu.edu/~action/2008/chrnothp08/dnccommission.html The DNC Rules and Bylaws Committee (“RBC”) “developed its recommendations to the full DNC that Nevada be added as an early caucus state after the Iowa caucuses and that South Carolina be added after the New Hampshire primary as an early primary state.”  Id. On August 19, 2006 the full DNC, meeting in Chicago, approved the RBC’s recommendations. Id.

A number of leading observers were quite critical of the Democrats’ changes.  In an August 16 column in The Hill R. Lawrence Butler, an assistant professor of political science at Rowan University, wrote, “The commission’s purpose was not to create a better presidential nomination process; it was an exercise in coalition management.” Id.

David Broeder of the Washington Post does not hide his disdain for these DNC scheduling machinations:

“The Democrats Dysfunctional Calendar”

This way lies madness, and madness is what the Democrats have wrought. When they started tinkering with their rules after the 1968 election disaster, they unleashed a fierce competition among the states to be at the head of the line, where the contests have the greatest impact on weeding the field and crowning the eventual winner.

New Hampshire was already there, thanks to a state law that had given it the first primary since 1952. Iowa jumped in with its caucuses, which launched Jimmy Carter in 1976. And then came the deluge. When state after state moved up primaries from April, May and June into early March, the “front-loading” problem became acute.

What was lost in all this was any sense of public deliberation about the choice of the next president. In the general election, people have two months or more to evaluate two or maybe three candidates. In the early primaries, eight or 10 people may be vying. What is most needed is time — and a place — for them to be carefully examined.

Historically, New Hampshire has fulfilled that responsibility. Voters there — in both parties and especially among the numerous independents who also vote in the primary — take their role seriously. They turn up at town meetings and they ask probing questions. So do the interviewers at local papers and broadcast stations. So do high school students.

New Hampshire voters don’t need — or particularly want — guidance from Iowa, and frequently they ignore the Iowa results. (Emphasis added by jbjd.) But they are stuck with Iowa. Now, thanks to the Democrats, they may be stuck with Nevada as well, and crowded from behind by South Carolina.

http://www.washingtonpost.com/wp-dyn/content/article/2006/08/30/AR2006083002732.html

In short, despite widespread disapproval, the DNC gave SC the early primary, which enabled Congressman Clyburn to unleash the race-baiting campaign for Obama, without which contrived slings and arrows the nominee wannabe arguably would not have been able to steal the D Presidential nomination.

The Quid Pro Quo

Question:  Assuming Mr. Clyburn’s race-baiting campaign would launch Obama into the WH, had Obama promised Mr. Clyburn something in return?

Answer:  Yes; the appointment of his daughter, Mignon, to a coveted seat on the FCC (Federal Communications Commission).

Why the FCC?  Well, as Sen. Jay Rockefeller (D-WV), current Chair of the Senate Committee on Commerce, Science, and Transportation said during hearings to consider recommending Ms. Clyburn’s appointment to the “consent” of the full Senate, “[The FCC] is one of the 2 or 3 most important agencies in all of government…  The FCC has this enormous wide ranging authority, and the question is, will it exercise it, will it expand it, will it not exercise it…” (cite infra)

From the FCC web site:

About the FCC

The Federal Communications Commission (FCC) is an independent United States government agency. The FCC was established by the Communications Act of 1934 and is charged with regulating interstate and international communications by radio, television, wire, satellite and cable. The FCC’s jurisdiction covers the 50 states, the District of Columbia, and U.S. possessions.

http://www.fcc.gov/aboutus.html

And this:

Strategic Goals

Broadband
All Americans should have affordable access to robust and reliable broadband products and services. Regulatory policies must promote technological neutrality, competition, investment, and innovation to ensure that broadband service providers have sufficient incentive to develop and offer such products and services.

http://www.fcc.gov/omd/strategicplan/

And this.

Broadband

All Americans should have affordable access to robust and reliable broadband products and services. Regulatory policies must promote technological neutrality, competition, investment, and innovation to ensure that broadband service providers have sufficient incentive to develop and offer such products and services.

Description

The term “broadband” refers to advanced communications systems capable of providing high-speed transmission of services such as data, voice, and video over the Internet and other networks. Transmission is provided by a wide range of technologies, including digital subscriber line and fiber optic cable, coaxial cable, wireless technology, and satellite. Broadband platforms make possible the convergence of voice, video, and data services onto a single network.

Impact

Broadband technology is a key driver of economic growth. The ability to share large amounts of information at ever-greater speeds increases productivity, facilitates commerce, and drives innovation. Broadband is changing how we communicate with each other, how and where we work, how we educate our children, and how we entertain ourselves. Broadband is particularly critical in rural areas, where advanced communications can shrink the distances that isolate remote communities.

Objectives

Congress recognized the importance of broadband in Section 706 of the 1996 Telecommunications Act, which directs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” The Commission’s goals are to:

  • Broaden the deployment of broadband technologies
  • Define broadband to include any platform capable of transmitting high-bandwidth intensive services
  • Ensure harmonized regulatory treatment of competing broadband services
  • Encourage and facilitate an environment that stimulates investment and innovation in broadband technologies and services.

http://www.fcc.gov/broadband/

In short, the FCC carries out its statutory authority by issuing rules and regulations that determine to what extent it will permit for profit businesses like Verizon Communications, Comcast Corp., and Time Warner Cable, among the top 20 individual contributors to Bridge PAC, Mr. Clyburn’s personal slush fund, or the telecommunication companies aggregating more than $100,000 into his pocket to convert public access to the internet both directly and via mobile phone technology into a pay-for-play scheme prohibitively expensive for optimum use by  the average American.

Five FCC Commissioners direct the buying and selling of communal air space.  Again, from the FCC site:

Organization

The FCC is directed by five Commissioners appointed by the President and confirmed by the Senate for 5-year terms, except when filling an unexpired term. The President designates one of the Commissioners to serve as Chairperson. Only three Commissioners may be members of the same political party. None of them can have a financial interest in any Commission-related business.

http://www.fcc.gov/commissioners/

So, what made Obama decide that Jim Clyburn’s daughter, Mignon, was the logical best choice for one of these 5 prized positions on the Commission?  Well, let’s examine her qualifications.  She had only a BS (from one of the undergraduate schools her father lists as his alma mater); a stint as the Publisher of the Coastal Times (what one SC native describes in an email to me, was a flyer distributed to local churches all evidence of which operation ceased to exist when Mignon ceased ‘publishing’); and 11 (eleven) years on the SC Public Service Commission representing the Sixth Congressional District.  http://www.whorunsgov.com/Profiles/Mignon_L._Clyburn Of course, since she only ran for a seat on the Commission in the Sixth District, the same District created majority minority that gave its first House seat to her father, Jim; it is impossible to determine how she would have fared on her own.  Yet in 2008, immediately after the November general election, Obama publicly proposed Mignon could be not just an FCC Commissioner but the new Chair of the FCC!  http://www.free-times.com/index.php?cat=1992912064190689&ShowArticle_ID=11011211084177219 and http://www.businessweek.com/technology/content/nov2008/tc2008119_650156.htm

Well, as with any appointment from the Executive Branch, Ms. Clyburn would have to win the “consent” of the Legislative Branch.  This would require that she survive scrutiny by the Senate Commerce Committee before facing a full Senate vote.  Surely, the Committee would insist notwithstanding her pedigree she was otherwise qualified for this position, especially considering the enormous influence Commission decisions exert on the public conversation, literally, through the products and services of its regulated industries. http://www.govtrack.us/blog/2009/07/30/markup-review-senate-committee-on-commerce-science-and-transportation-july-21st/

Here is the video of the Commerce Committee hearings on Ms. Clyburn’s confirmation.   (This does not embed.  http://www.c-spanvideo.org/program/287731-1) As you will see, both the D nominee, Ms. Clyburn; and the R nominee, Meredith Atwell Baker, face confirmation together at this hearing, even seated at the table next to each other, to answer questions.

Here are the ‘credentials of Ms. Baker, then Acting Assistant Secretary for Communications and Information, National Telecommunications & Information Administration (“NTIA”), taken from the NTIA web site.

Ms. Baker earned a Bachelor of Arts degree from Washington & Lee University in 1990 and a law degree from the University of Houston in 1994.  She is a member of the Texas State Bar.

Before joining NTIA, Ms. Baker was Vice President at the firm of Williams Mullen Strategies where she focused on telecommunications, intellectual property, and international trade issues.  Earlier, she held the position as Senior Counsel to Covad Communications from 2000 to 2002, and Director of Congressional Affairs at the Cellular Telecommunications Industry Association (CTIA) from 1998 to 2000.  Ms. Baker worked at the U.S. Court of Appeals Fifth Circuit in Houston and later at the law firm of DeLange and Hudspeth, L.L.P.  From 1990 to 1992, she worked in the Legislative Affairs Office of the U.S. Department of State in Washington.

http://www.ntia.doc.gov/ntiahome/ntiageneral/bios/baker.html

In his opening statement, Chair Jay Rockefeller (D-WV) calls the FCC a “broken agency,”  which has failed to facilitate consumer access to burgeoning communication technology.

Senator Kay Baily Hutchinson (R-TX), the ranking member on the Committee, informs the Committee she met with Ms. Clyburn in her office.  (This begins at around the 9-minute mark.) She describes this nominee has “vast experience” with a “background in print media.  That provides an important perspective to understand the difficulties faced by newspapers and other media outlets in these very difficult economic times.  She also has an impressive public service background which I am hopeful will help guide her through the many important media issues at the FCC.”  She concludes her introduction by telling the Chair she looks forward to confirming Ms. Clyburn “on an expeditious basis.”  Senator Lindsey Graham (R-SC) says Ms. Clyburn’s years on the SC Public Service Commission will mean, issues facing her on the FCC will be “nothing new.”  He concludes, “This fine young lady is the right person at the right time for this most important job.  And she is well qualified and I hope she gets confirmed unanimously.” Senator Jim DeMint (R-SC) mentions Ms. Clyburn’s experience in “small business.”   (Is he referring to the ‘newsletter’?) He is also impressed with her public service, which demonstrates her “servant heart.”

(For a prototypical exchange between questioners and nominee Clyburn, see 50:56-55:36.)

Okay, both D’s and R’s on the Committee signal Clyburn’s confirmation is a fait accompli.  But is this because of her “vast experience in print media” and her “servant heart” for public service?  Or is this because Baker (R), will not get confirmed without Clyburn (D)?

Word of Ms. Clyburn’s nomination made some people on the political ‘left’ who were concerned with ‘net neutrality’ uneasy.

Is President Obama Putting Net Neutrality At Risk? by Chris Bower

The reason Mignon Clyburn is such a worrying pick is that she is the daughter of South Carolina Representative James Clyburn, who has an anti-Net Neutrality record:

In 2006, Representative Clyburn voted against H. Amdt. 987 to ensure that network neutrality clauses be added to the Title VII of the Communication Act of 1934. The amendment required all broadband service provides to “operate its broadband network in a nondiscriminatory manner so that any person can offer or provide content, applications, and services through, or over, such broadband network with equivalent or better capability than the provider extends to itself or affiliated parties, and without the imposition of a charge for such nondiscriminatory network operation.”

While Mignon might not have the same views as her father, what we do know about her ranges from unclear to unpromising:

Here’s what we do know.  Clyburn serves on the South Carolina public service commission (which is considered very pro-Bell).  She is virtually unknown by knowledgeable telecom people.  And, she seems to have focused more on energy issues than telecom, if early accounts are to be believed.  Plus, Verizon and the cable trade association are very happy.  All in all, not good.

And check out this creepy comment that appeared below the Washington Post story on Clyburn’s appointment:

At Sprint Nextel, we believe that Mignon Clyburn would bring experience, deep policy understanding and the perspective of a state utility commissioner to the FCC. We have worked with her in South Carolina where she has served on that state’s Public Service Commission and we look forward to working with her again on any number of issues including restoring competition to the failed special access markets that are stifling broadband deployment in our country.

Feel reassured about the new deciding FCC vote on net neutrality and open media yet? This is a dangerous and risky appointment by President Obama that will need extensive clarification in the coming days and weeks leading up to her confirmation hearing. It seems possible that more information will be revealed that will demand a withdrawal of the appointment.

http://www.opednews.com/articles/Is-President-Obama-Putting-by-Chris-Bowers-090504-67.html

Talking Points Memo warned back in May 2009, “Mignon Clyburn Will Kill Net Neutrality.”

http://tpmcafe.talkingpointsmemo.com/talk/blogs/rutabaga_ridgepole/2009/05/mignon-clyburn-will-kill-net-n.php

Senate Commerce Committee members unanimously recommended the full Senate should approve Obama’s pick for the FCC.

One month later, in August 2009, Obama appoints Mark Lloyd as the FCC’s Diversity Adviser.

When asked about Mr. Lloyd’s appointment to the FCC given his past pronouncements on the need to restrict certain political speech on the airwaves, Commissioner Clyburn claims she has heard no such concerns raised about the “gentlemanly” czar.

In January 2010, Commissioner Clyburn attends the Consumer Electronics Show, evidently trying to get up to speed on the technology she regulates.

On September 2, 2010, the FCC announced it would postpone any final decisions on regulating ‘net neutrality’ until after the November mid-term elections. http://www.eweek.com/c/a/Government-IT/FCC-Net-Neutrality-Decision-Is-Delayed-Possibly-Until-November-836417/ The Richmond Tea Party describes this November meeting could be “the day the government seizes control of the internet.”  http://www.richmondteaparty.com/2010/10/november-30th-could-be-the-day-the-government-seizes-control-of-the-internet/

On September 20, 2010, Commissioner Clyburn hired her father’s senior counsel, Dave Grimaldi, as her Chief of Staff and media legal adviser.   Working for Daddy Clyburn, Mr. Grimaldi specialized in technology, telecommunications, foreign affairs and financial regulation. http://thehill.com/blogs/hillicon-valley/personnel-notes/119783-fccs-clyburn-announces-new-chief-of-staff

Conclusion and Recommendations

In the FCC as with so many governmental agencies, it would appear, you are likely to get exactly what you pay for.

Constituents of the Senators on the Commerce Committee holding Ms. Clyburn’s confirmation hearings should submit FOIA requests for these written materials that are presumably part of the record, as these were the stated basis to support her bid for the seat on the FCC:  college transcripts and copies of the Coastal Times. If either of these documents does not exist then, the Senators who recommended her confirmation to their colleagues in the full Senate notwithstanding no documentary evidence exists she is competent for the job, have demonstrated their incompetence for the jobs to which they were elected, too.


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