Monday 18 May '09 show

• Article: Supreme Court says Bush officials can't be sued for alleged detainee abuse.
  "The court's liberal justices - David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens - dissented from the court's opinion.

  "There is no principled basis for the majority's disregard of the allegations linking Ashcroft and Mueller to their subordinates' discrimination," Souter wrote.

  "
• Ashcroft, Former Attorney General, et al. v. Iqbal et al..
• Justice Souter's dissent to Ashcroft and Mueller v. Iqbal, 07-1015...
  

  The dangers of the majority’s readiness to proceed without briefing and argument are apparent in its cursory analysis, which rests on the assumption that only two outcomes are possible here: respondeat superior liability, in which “an employer is subject to liability for torts committed by employees while acting within the scope of their employment,” Restatement (Third) of Agency §2.04 (2005), or no supervisory liability at all. The dichotomy is false. Even if an employer is not liable for the actions of his employee solely because the employee was acting within the scope of employment, there still might be conditions to render a supervisor liable for the conduct of his subordinate. See, e.g., Whitfield v. Meléndez-Rivera, 431 F. 3d 1, 14 (CA1 2005) (distinguishing between respondeat superior liability and supervisory liability); Bennett v. Eastpointe, 410 F. 3d 810, 818 (CA6 2005) (same); Richardson v. Goord, 347 F. 3d 431, 435 (CA2 2003) (same); Hall v. Lombardi, 996 F. 2d 954, 961 (CA8 1993) (same).

  In fact, there is quite a spectrum of possible tests for supervisory liability: it could be imposed where a supervisor has actual knowledge of a subordinate’s constitutional violation and acquiesces, see, e.g., Baker v. Monroe Twp., 50 F. 3d 1186, 1994 (CA3 1995); Woodward v. Worland, 977 F. 2d 1392, 1400 (CA10 1992); or where supervisors “ ‘know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see,’ ” International Action Center v. United States, 365 F. 3d 20, 28 (CADC 2004) (Roberts, J.) (quoting Jones v. Chicago, 856 F. 2d 985, 992 (CA7 1988) (Posner, J.)); or where the supervisor has no actual knowledge of the violation but was reckless in his supervision of the subordinate, see, e.g., Hall, supra, at 961; or where the supervisor was grossly negligent, see, e.g., Lipsett v. University of Puerto Rico, 864 F. 2d 881, 902 (CA1 1988). I am unsure what the general test for supervisory liability should be, and in the absence of briefing and argument I am in no position to choose or devise one.

• 5:4 decision, the 5 right wing justices ruling in favor of Ashcroft. At least four of the judges are members of the same right wing church. Clarence Thomas did not ask questions for three years, he just goes along with Scalia. Souter is retiring, the other liberal justices are likely to retire before the right wing ones, Obama will replace them but it will still be a right wing court.
• Article: Pro-Democracy Leader Goes on Trial in Myanmar.
  "Mr. Yettaw, from Falcon, Mo., swam across Inya Lake in central Yangon this month and sneaked into Mrs. Aung San Suu Kyi’s lakeside compound at night. He used empty plastic jugs to keep himself afloat during his swim, and he had a pair of makeshift flippers strapped to his feet, according to reports in the official Myanmar press.

  The reasons for his escapade remained unclear, although an American diplomat said last week that Mr. Yettaw seemed to have religious motivations for trying to visit the house. Mrs. Aung San Suu Kyi’s principal lawyer, who called Mr. Yettaw “a nutty fellow” and “a fool,” said Mrs. Aung San Suu Kyi had pleaded with him to leave, but he complained of exhaustion and leg cramps. She gave him a ground-floor room while she stayed in her bedroom upstairs.

  "
• Article: Nothing About the Prosecution of Don Siegelman Escapes the Taint of Corruption.
  "Mark Everett Fuller is unique among federal judges. Though he gets a lot of income from the federal government, a relatively small part of it comes from his judge's salary. In 2005, according to financial disclosure forms, Fuller received between $100,000 and $1,000,000 in dividends from Doss Aviation, Inc., plus he also received between $100,000 and $1,000,000 in dividends from Doss of Alabama Inc. Fuller owns controlling shares, 43.75%, of Doss Aviation and Doss of Alabama Inc., a corporate group that has grown exponentially though federal contracts. After Fuller was assigned to the Siegelman trial, Doss Aviation was awarded with a $175,000,000 defense contract."
• Cartoon: Time to Regulate Derivatives, Tom Toles.
• Article: And He Shall Be Judged, Robert Draper.
  "Former defense secretary Donald Rumsfeld has always answered his detractors by claiming that history will one day judge him kindly. But as he waits for that day, a new group of critics—his administration peers—are suddenly speaking out for the first time. What they’re saying? It isn’t pretty.

  On the morning of Thursday, April 10, 2003, Donald Rumsfeld’s Pentagon prepared a top-secret briefing for George W. Bush. This document, known as the Worldwide Intelligence Update, was a daily digest of critical military intelligence so classified that it circulated among only a handful of Pentagon leaders and the president; Rumsfeld himself often delivered it, by hand, to the White House. The briefing’s cover sheet generally featured triumphant, color images from the previous days’ war efforts: On this particular morning, it showed the statue of Saddam Hussein being pulled down in Firdos Square, a grateful Iraqi child kissing an American soldier, and jubilant crowds thronging the streets of newly liberated Baghdad. And above these images, and just below the headline secretary of defense, was a quote that may have raised some eyebrows. It came from the Bible, from the book of Psalms: “Behold, the eye of the Lord is on those who fear Him…To deliver their soul from death.”

  "
• Bumper Music: Operation Spirit, Live (video).
• Bumper Music: Piggies, George Harrison, Beatles (video).
• Article: Barack Obama's key climate bill hit by $45m PR campaign.
• Bush business failings, going AWOL, he's never been held to account. First he clung to the bottle, then to religion. Rumsfeld feeding him the war in a religious context. Now the Supreme Court says we can't sue them. Sandra Day O'Connor retired.
• What is Bush doing? A couple of speeches abroad. He raised $100 million for his legacy program at SMU. Reagan's legacy program.
• How can Rumsfeld, Ashcroft, Cheney, etc. be prosecuted? Oligarchy fascism. Naomi's 10 things.
• Book: "Give Me Liberty: A Handbook for American Revolutionaries", Naomi Wolf.
  The ten steps to fascism:
  1. Invoke a terrifying internal and external enemy
  2. Create a gulag
  3. Develop a thug caste
  4. Set up an internal surveillance system
  5. Harass citizens' groups
  6. Engage in arbitrary detention and release
  7. Target key individuals
  8. Control the press
  9. Dissent equals treason
  10. Suspend the rule of law.
• Don Siegelman case.
• Despair is not an option.
• Article: Groups seek disbarment for Bush's top lawyers.
  "A coalition of progressive groups sought Monday to have 12 Bush administration lawyers disbarred for their roles in crafting the legal rationale for so-called enhanced interrogation techniques that many view as torture. ...

  The group registered formal complaints against David Addington, John Ashcroft, Stephen Bradbury, Jay Bybee, Michael Chertoff, Douglas Feith, Alice Fisher, Timothy Flanigan, Alberto Gonzales, William Haynes II, Michael Mukasey and John Yoo.

  "
• Guest: attorney Kevin Zeese.
  "Kevin Zeese is the Executive Director and co-founder of VotersForPeace. Zeese also served as the Executive Director of Democracy Rising, is an attorney, and a long term peace advocate. Zeese took a leave from VotersForPeace for most of 2006 while he was running for the U.S. Senate in Maryland. Zeese was a founding member of the Montgomery County Coalition Against the War in Maryland and has worked with various non-profit organizations on peace, justice, and democracy issues since 1978." They are approaching one bar per lawyer, mostly in Washington. Robert Mueller is not on the list. Mueller backed up Comey at Ashcroft's hospital bedside, pushing back a lot. Go to the site to find out how to get involved.
• Guest: Carrie Lukas, Vice President for Policy and Economics, Independent Women's Forum. Author, "The Politically Incorrect Guide to Women, Sex, and Feminism". “Pregnant? You’re fired?!” Congratulations on her new, Patrick, born on April 28. She was on 2020 with John Stossel. Thom filmed a slot with Stossel but it was not aired. Is she suggesting she should be able to be fired because of pregnancy? She thinks the government should not be in the relationship between employer and employee. She's for laws against robbery, it is not voluntary. Happier countries. Where has a libertarian paradise worked? It has not been tried.
• Bumper Music: Baby Don't Go, Sonny & Cher.
• Jeff Sessions is building a rationale for filibustering the future supreme court nominee.
• Clip:
  "That very word freedom, in itself and of necessity, suggests freedom from some restraining power. In 1776 we sought freedom from the tyranny of a political autocracy - from the eighteenth-century royalists who held special privileges from the crown...

  "But since that struggle, man's inventive genius released new forces in our land, forces which reordered the lives of our people. The age of machinery, of railroads; of steam and electricity; the telegraph and the radio; mass production, mass distribution - all of these combined to bring forward a new civilization and with it a problem for those who sought to remain free.

  "For out of this modern civilization economic royalists carved new dynasties. New kingdoms were built upon concentration of control over material things. Through new uses of corporations and banks and securities, new machinery of industry and agriculture, of labor and capital - all undreamed of by the Fathers - the whole structure of modern life was impressed into this royal service...

  "Private enterprise, indeed, became too private. It became privileged enterprise, not free enterprise...

  "The royalists I have spoken of, the royalists of the economic order have conceded that political freedom was the business of the government, but they have maintained that economic slavery was nobody's business. They granted that the government could protect the citizen in his right to vote, but they denied that the government could do anything to protect the citizen in his right to work and his right to live...

  "These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power. Our allegiance to American institutions requires the overthrow of this kind of power. In vain they seek to hide behind the flag and the Constitution. But in their blindness they forget what the flag and the Constitution stand for. Now, as always, they stand for democracy, not tyranny; for freedom, not subjection; and against a dictatorship by mob rule and the over-privileged alike.

  "

  Franklin D. Roosevelt, 27 June 1936, "A Rendezvous With Destiny" Speech to the Democratic National Convention, Philadelphia, Pennsylvania.

• Obama should listen to FDR.
• How do we define freedom? There should be a conversation in America. It used to be negative as well as positive - the freedom not to be oppressed as well as the freedom to things. FDR on freedom. The US freed itself from British rule. The constitution restrains the government, but as FDR points out, the growth of corporations. We have been oppression by corporations.
• Thom:
  

  And that's where Carrie and I are separating. And I would submit to you that in order to be free we need to be free from a restraining force. The restraining force that the founders saw was the government of the United Kingdom, was the king. And they wanted to make sure that this country was free from the power of government, that citizens of this country were free from the power of government. And that's why the constitution of the United States is very often referred to as a list of negative freedoms; that is freedom that you and I enjoy that negate the power of government; it restrains the power of government.

  The problem, as Roosevelt correctly points out, is that with the industrial revolution and the mercantile revolution, this explosion of commerce in the United States, the growth of corporations, and not just corporations but now transnational and multinational corporations, we have gone from being concerned about freedom from oppression by government to, now. we're looking at oppression by corporations. And I just find it tragic that well-intentioned, good people, Libertarians, Republicans, Conservatives, particularly those who are not millionaires and billionaires, are buying into this notion that the only kind of freedom that exists is freedom from government force when in fact there is another force in this country which I would assert to you is even more powerful than government force. It is so powerful that it is able to make Barack Obama stop talking about single payer health care.

  It is so powerful that it is able to make Barack Obama go sign on with the FISA bill. It is so powerful it is able to make politicians, the Democratic Party, make 11 Democrats vote against the average citizen with regard to mortgages and bankruptcy. And that power is corporate power in the United States, and if we don't push back against that corporate power in this country the way that Franklin Roosevelt did in the 1930s, then we are going to live in a big brother society and our freedoms will be lost, and they will not be lost to government. Government will be used as a tool to force that tyranny, but the puppet master behind that tyranny will not be the president or the Senate or the House or the Supreme Court; it will be in corporate board rooms all over the world.

• Bumper Music: You're the Voice, Heart (video).
• Bumper Music: You can leave your hat on, Randy Newman.
• Article: Up and At 'Em for National Penis Day.
• Article: China's first sex theme park closes before it opens.
• Corporate personhood.
• Faith vs. reason. The founders believed democracy could work.
• Bumper Music: The World, Brad Paisley (video).
• Bumper Music: Crazy, Gnarls Barkley.
• Video: Regulation Vacation Celebration! Government-free Somalia, Libertarian paradise?
• Article: Stateless in Somalia, and Loving It.
• Big box stores closing small competition.
• It is not the companies, it is the system, Congress.
• Book: "Critical Path", R. Buckminster Fuller.
• Book: "Grunch of Giants", R. Buckminster Fuller. Read it online.
• Upcoming Event: May 21 1080 KUDO, Anchorage, Alaska presents an evening with Thom Hartmann, Hosted by Eddie P at the Anchorage Aviation Heritage Museum. Doors open at 6:30, dinner at 7. Catered by: Blues Central. Tickets $25 in advance $30 at the door.
• Upcoming Event: May 21 - 22 Show live from 1080 KUDO, Anchorage, Alaska. May 22 Thom will speak at the IBEW annual Progress Meeting (Western States) at the Hotel Captain Cook on Friday from 10 - 11 am (ADT).
• Guest: Author/filmmaker Kenny Golde. “Do it Yourself Bailout”. He was making a film, going over budget, his investor died, the credit market collapsed and nobody was buying movies. He could not find any advice. He negotiated with 6 banks to reduce the balance on 7 cards, and saw a pattern. First you have to be willing to stop paying. The offers improved as time went on. Most settled for around 35%. They use scripts. The emotional side is the big thing. People have negative emotions to debt, and the banks know that. Let your feelings go first, then negotiate. So many are suffering through no fault of their own. Corporations treat debt as a commodity, people don't call CEOs who go bankrupt bad. It tears at the fabric of a society based on trust, but that has already been done.
• Bumper Music: Money, Pink Floyd (video).
• Article: The U.S.-Europe Comparison, Jonathan Tasini.
  "One of the things I find most tiring--and there are, granted, many candidates for that list--is the refrain that "well, things may be bad in the U.S. but look how much worse it is in Europe?" I get that nonsense all the time, particularly when I have to debate the free-marketeers and the defenders of this country's economic system. In my most recent dust-up on CNBC with Maria Bartiromo, she used the "what, you want to be Europe" defense, to which I said, more or less, we can learn a lot from Europe."
• Article: Yes, Maria Bartiromo, There Is Class Warfare, Jonathan Tasini.
  

  Yesterday, I was on CNBC's Closing Bell to debate the absurd notion that public employees are the people to blame for state government budget problems. But, what was most interesting about the debate with CNBC's anchor Maria Bartiromo is how she became speechless -- and that ain't no easy feat -- when I challenged her about class warfare. The quick lead-up was this: the premise of the program was that those big, bad public unions were using their power to direct stimulus to states in order to save union jobs. To which I said "amen":

  If I can first address the main point: thank God for the public sector unions. Because if it wasn't for the public sector unions, and the stimulus money coming to states to save jobs, this economy would not just be in a so-called recession, we'd be at the bottom of the abyss. It's actually the stimulus money that has saved part of the economy and kept that sector going while in fact the private sector has declined because there's no credit as you well know in the private sector, and jobs have been lost like crazy.

• Guest: Jonathan Tasini, Executive Director Labor Research Association. The institutionalized class warfare that drives organized labor. His debate on CNBC with Maria Bartiromo.
• Article: Twitter cat has 500,000 fans .
• Article: Couple crosses ocean for purrr-fect kitten. When the system breaks, it is time to regain control, likely crash at end of summer. Get gardening. Thumbnail history of the control of government.
• "I've always felt the nine most terrifying words in the English language are, 'I'm from the government and I'm here to help'." Ronald W. Reagan.
• Mrs. Aung San Suu Kyi's house arrest was over. They would have found another excuse. Thom visited the Karens.
• Just because corporations do it doesn't make it right. Thom went and paid back all except the bank (who could not deal with it) after he bankrupted his first company.
• Jay Tamboli, Talk radio News. Supreme Court. San Diego have to issue medical marijuana cards because the court would not hear the appeal. 5:4, details of the Ashcroft, Former Attorney General, et al. v. Iqbal et al. case. The issue was whether they could be sued as individuals. Souter's dissent. Supervisory liability. The majority dismissed it out of hand. It's an early stage of the case, and that issue had not been presented; it may come up again. There are a lot of ways he can come back, and he is suing others.