Our Decrepit Constitution: 1. Bill of Rights

The framers of the U.S. Constitution cobbled together a document that described a possible government for the thirteen original colonies. All of the framers who signed the constitution understood that it is not a perfect document. It is a compromise. The Senate is composed of two delegates from each state as a compromise to appease the smaller states. This principle, adopted by the California State Constitution for its State Senate, was struck down by the U.S. Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964), when Earl Warren wrote that legislatures represent people, not trees or acres. The U.S. Constitution, 48 years later, still supports the notion that U. S. Senators represent trees, not people.

The Constitution limited eligible voters to white male property owners. The property owners could also cast votes on behalf of their slaves, each of which was set equal to 3 fifths of a white man. Seventy-six years later, the Fourteenth Amendment gave to African-Americans the right to vote. Fifty-five years after that, the Nineteenth Amendment extended the franchise to women. Yet modern textualist jurists insist that we should interpret the words of the Constitution exactly as the framers meant them. This is nonsense. The framers were parochial thinkers in a backward country, still threatened by larger neighbors and Native American tribes. They were hardly the repositories of all wisdom that modern conservatives imagine them to be, nor did they believe that of themselves. Their experience did not include much of what today informs our thinking about human rights, science, and philosophy.

Some of the framers might be included in the group of thinkers who epitomize world wisdom on the subjects of politics and government, but not all. Madison, Hamilton, and Jay authored the Federalist Papers. Other signers of the Constitution are less well known as thinkers. Later thinkers would also be included in the prestigious group, like Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Delano Roosevelt, Susan B. Anthony, Eleanor Roosevelt, and Martin Luther King, to name only a few Americans. The international list would be much longer and would include a number of non-Americans who influenced the framers, including Locke and Montesquieu.

Americans in general, not just conservatives, believe that the Constitution is a semi-divine document. It gives us foolproof rules for governance. It protects our rights. We believe this despite the numerous constitutional crises that have occurred over the years.

Constitutional Crises

The first constitutional crisis involved the manner prescribed by the Constitution for the election of the president. This crisis occurred in 1800, when opponents of Thomas Jefferson tried to have Aaron Burr declared president. Burr was the vice presidential candidate, but the Constitution failed to recognize that the Vice President and the President would usually have the same number of electoral votes and that this fact could be exploited by politicians. The election of 1800, only the third presidential election held under rules established by the Constitution, was decided by the House of Representatives instead of the electors.

The nation has a severe problem. The Republicans have kept their promise never to raise taxes, but they lowered taxes and made vast appropriations for two wars without raising the funds to pay for them. No one likes high taxes, but the government needs money to pay for the programs that voters have approved and that business and the poor may rely on. The Constitution, which makes it impossible to pass laws without compromise, compounds the problem. The Republicans will not compromise on their political positions. They have made a constitutional crisis into a government crisis for which no one has found an answer.

Despite evidence to the contrary, many people, including members of the courts, consider that the Constitution is perfect or nearly so. All we need to do is tweak it from time to time. But the document itself forbids change. The Constitution is 224 years old this year. It is a creaking vessel taking in water at every joint. It was designed to slow the pace of change. Recently it has succeeded so well that it seems to be turning time backward to a time when only property owners had rights, minorities were enslaved, women had no vote, and only one culture was accepted and protected by the government.

The Supreme Court determined the outcome of the presidential election of 2000. The election in Florida was indecisive. Both sides claimed victory. A series of actions by the Florida state legislature and courts were appealed to the Supreme Court, which made its decision along strict party lines. Nothing in the Constitution gives the authority to decide elections to the Supreme Court, but nothing in the document prevents them from doing so.

Our leaders and thinkers spend a great deal of time thinking about how to make the Constitution work, just as medieval thinkers exhausted their energies trying to imagine God and his plan. The thinkers who followed medieval times created a government ruled by a document, just as the Church was ruled by the Bible. The study of the Constitution has become as sterile and fruitless as the theological studies of the Middle Ages. We need to stop wasting time fantasizing about what the framers intended and start thinking about how to put our country back on track.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first amendment was intended to guarantee the rights of individuals to speak out against the abuses of government. From the very beginning, these rights were challenged by the government, which passed the Alien and Sedition Acts in 1798. The Supreme Court never invalidated the Alien and Sedition Acts, although the Acts specifically banned freedom to criticize the government. The government used the Acts to imprison a Congressman, John Lyon, for writing a letter critical of President Adams and other similar acts. The Constitution did not protect Lyon's rights.

More recently, the supreme court has ruled that people with large sums of money have a right to drown out the voices of the majority. A small group of plutocrats spent hundreds of millions of dollars in 2012 to elect candidates to office. They did not succeed in getting the presidency, but they did succeed in many other races and they retained control of the House of Representatives. The framers envisioned a representative democracy. The Supreme Court has interpreted the First Amendment as giving inordinate power to a small group of wealthy people. The government has almost ceased to be a democratic republic and is close to becoming a plutocracy.

The plutocrats have taken advantage of the Supreme Court's ruling by financing propaganda. They use vast fortunes to buy advertisements on television, radio, and in print. They buy their own newspapers, radio stations, and television networks. The newspapers and networks created numerous scandals that were damaging to their political opponents.

The First Amendment protects people's right to tell lies, but it does nothing to protect people from the damage done by lying, legally called defamation. The laws against defamation in the U.S. are too weak to prevent elections being altered by lies. In 2004, a group of wealthy Republicans spent millions of dollars to convince the public that John Kerry had lied about his war record. The Kerry campaign had no way to stop the lies being broadcast continuously for weeks. The First Amendment protected the defamers and engineered Kerry's defeat.

Rupert Murdoch has subverted the press by buying Fox News Channel and turning it into a non-stop propaganda networkfor the Republican party. The wealthy publishers, Disney and Warner and their peers, still have this freedom. The rest of us do not. The copyright law makes an exception for fair use, meaning that you or I can use copyrighted material without paying for it under circumstances. The Digital Millennium Copyright Act (DMCA) took the right of fair use away from anyone posting to social network sites on the internet. The DMCA determines that a copyright holder can demand that a publisher, such as Facebook or YouTube, must immediately remove any material from its website or face severe fines. This removes the concept of fair use from copyright law, since Facebook or YouTube will not protect your fair use right and risk large fines. The Congress has taken away your right to due process, since the material must be removed immediately. You can appeal, and may win, but lawyers cost money and trials take time. If fair use must be won it court it is not safe to publish anything that may be contested.

It may appear contradictory that laws against defamation are too weak to prevent intentional lying but copyright laws are not strong enough to protect the right to fair use of copyrighted materials. The parties favored by the two laws have a great deal in common, however. They have plenty of money to defend themselves from charges of defamation or to attack people they accuse of violating copyrights.

The First Amendment forbids the congress making any law respecting the establishment of any religion. Congress passed and President Clinton signed the Defense of Marriage Act in 1996. This law, by defining marriage exclusively as a right of heterosexuals, adopted the religious views of part of the population and incorporated those views into federal law. The First Amendment did not prevent this from happening and could not help people who suffered from its effects. In 2012 the Supreme Court appears ready to annul the law, only sixteen years after its passage. The constitutional system appears to work, but only after time and money have been expended to fight this law. Justice delayed is justice denied.

Second Amendment

Its supporters, including members of the supreme court, ardently believe that the second amendment guarantees every U.S. Citizen the right to own a gun. The actual wording of the amendment does not appear to support this belief:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The form of this amendment is a logical inference, meaning that if and only if the first part of the sentence is true, then the second part will also be true. Therefore, if a well regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms may be infringed by federal law. In some cases, where firearms cause danger to the people, then arms must be regulated to protect the public safety.

Justices of the Supreme Court who wish to return the country to the supposed golden age of the 18th century have ceased to analyze the actual meaning of the Constitution. They instead have developed complicated systems to infer that the framers, or at least the society of the late eighteenth century, believed that the right to bear arms should exist independent of any militia. This is hardly plausible, since the framers showed themselves to be fearful of the masses in numerous aspects of the Constitution.

The Second Amendment is obsolete. It guarantees citizens the right to bear arms because a well-regulated militia is essential to the security of a free state. This amendment passed before the U.S. had a standing army. Many of the framers, including Thomas Jefferson, opposed a standing army or navy. They intended to defend the country from England or France, then world superpowers, with a volunteer army whose soldiers kept their own guns.

During the Civil War militias were called out by the governors of the southern states to serve as the nucleus for an army of rebellion. In response to this abuse by the states, the Militia Act of 1903 established the National Guard under the dual control of the states and the federal government. The Militia Act gave the President the authority to place the state militia under the authority of the Army, thus effectively preventing their use for purposes of insurrection. Yet second amendment supporters continue to threaten rebellion.

The Second Amendment continues in force long after it has outlived its original purpose. Today it causes more harm than good by providing a legal excuse for the sale of deadly weapons to civilians. Twelve thousand people die from gunshot wounds in the U.S. every year. The Second Amendment, intended to protect the United States against invading armies, now contributes to needless slaughter of our citizens.

The politicized Supreme Court ruled in 2008 (District of Columbia v. Heller, 554 U.S. 570) that the Second Amendment guaranteed an individual's right to own a firearm, regardless of his membership in a militia. In this ruling, the majority of the Court continued its identification with the Republican Party by ignoring the legislative history of militias after 1789. Their ruling would have been correct in 1789, in a frontier country where everyone was required to bring a musket with them when they were called up.

A musket is a single-shot weapon that takes up to a minute to reload. The bullet must be inserted into the barrel of the musket, then tamped into place with a steel rod. A person must practice long hours to reload quickly and aim the gun properly. He will find great difficulty hitting a moving target, especially one that tries to get away. Most minutemen were not great marksmen, nor were they capable of coordinating their shot

It is not 1789 any longer. Our hand-held weapons can fire 50 or 100 shots in minutes without reloading. Gun sales advocates frequently argue that murderers will find other weapons if guns are not available. These advocates cite the genocide in Rwanda where 500,000 people were killed with machetes. The massacres there occurred over 100 days and involved up to 500,000 attackers. By contrast, a single individual with an automatic rifle killed 20 children, along with the 6 adults that tried to protect them, in less than an hour. Had the shooter been armed with a knife, it is likely that no children would have died, as there were adults on site who tried to disarm the shooter.

President Obama has recently announced several initiatives on gun control. He announced, as do all other politicians making public statements in support of gun control, that he is a firm supporter of the second amendment. Gun control laws protect the American people from the dire consequences of the second amendment. Its repeal would save thousands of lives annually.

Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Patriot Act was the first law that subverted the terms of the fourth amendment. Section 215 of the Act made it possible for investigators to demand that a suspect turn over tangible things so long as these things are needed for an authorized investigation. The investigators no longer need to show probable cause, or even reasonable grounds, that the person under investigation is engaged in criminal activity.

In 2002 President Bush signed an executive order authorizing the National Security Agency (NSA) to conduct warrantless wiretapping of thousands of American citizens without a court order. At about the same time, the NSA began working on a top-secret project called Stellar Wind, that would collect millions of documents, phone calls, and digital transactions and store them in a massive facility in Bluffdale, Utah. These digital records were collected from law-abiding American citizens without warrants.

The Fourth Amendment did not stop the President from authorizing warrantless searches, nor did it stop the Congress from passing legislation that apparently violates the constitutional provision against unlawful search.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The framers put their faith in independent, reasonable jurors. A grand jury today seldom decides cases against the advice of the prosecutor who convened the jury. The prop of an independent grand jury has been removed, although the independence of jurors may always have been illusory.

Supreme Court Justice Antonin Scalia has held that the Constitution does not prevent the execution of a defendant who has been convicted by a full and fair trial and later convinces a habeas court that he is innocent. This is true. The Fifth Amendment states that a person may not be deprived of life without due process of law. It does not prevent a state from manufacturing evidence against a defendant. The Supreme Court, following Scalia, considers only the careful observance of procedure, not flaws in the process itself, or the prejudice of the people. Troy Davis, whose case Scalia was commenting on, was executed by the state of Georgia despite efforts of numerous individuals and organizations to secure a review on the basis on recanted testimony..

The framers erroneously assumed that state governments would take care not to convict innocent persons. Instead, according to the NAACP and Amnesty International, states have shown a propensity to convict African-Americans for crimes regardless of their guilt or innocence. Since 1973 over 140 persons have been released from death row where they had been confined as a result of due process. The defendants were not protected by the Fifth Amendement, but because of a post-trial actions, such as the discovery of DNA evidence.

An unjustly convicted person should not expect a reprieve from the Supreme Court, where Scalia refused to consider Davis's case, calling it a fool's errand and a sure loser.

Due process starts with the presumption of innocence. Without that presumption, the accused is presumed guilty until he clears himself. The reasonable doubt is then given to the prosecution. Without that coin to throw onto the scales of justice, a defendant has little chance to escape punishment.

The Fifth amendment explicitly prevents the state from forcing a defendant to testify against himself. This clause was intended to prevent the use of torture in criminal trials, where it was still used in the eighteenth century. The Bush Administration, wishing to use torture against captured terrorists, simply disregarded the Fifth Amendment. John Woo, a lawyer appointed by the president, wrote an opinion that justified the use of torture. His opinion was used by the CIA to justify their treatment of enemy combatants.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment bans cruel and unusual punishment. The state of Alabama impressed prisoners into chain gangs and forced them to toil in the hot sun without concern for their health or safety. Chain gang members who became angry at their treatment vented their anger on the men who were chained next to them and could not escape their attacks. Prison wardens rounded up African Americans on fictitious charges to supply their customers, who profited from this form of slave labor. The institution of the chain gang was outlawed by the U.S. Supreme Court as cruel and unusual in 1910. Despite this ruling, Alabama and Arizona once again began using chain gangs in the 1990s until the Supreme Court outlawed the practice again in 1996.

As a form of discipline, Alabama prison authorities chained prisoners to a high railing and forced them to stand for hours, a practice decried as torture by the United Nations. The Federal Court indicated (Gates v. Collier 501 F.2d 1291 (1974)) that this practice in Mississippi constituted cruel and unusual punishment as early as 1974. The prison system of the state of Alabama was still using this form of punishment in 1995. The Supreme Court definitively declared this practice unconstitutional in 2002 (Hope v. Pelzer 536 U.S. 730 (2002)). This indicates the prisons in Alabama continued inflicting cruel and unusual punishments on inmates for at least 21 years after the courts ruled such practices unconstitutional.

Justice Thomas (Hudson v. McMillian (1992)) argued that such treatment did not constitute cruel and unusual punishment because it was not part of a judgment. Thomas apparently believes that the treatment of prisoners, once they are sentenced and incarcerated, is of no concern to the Supreme Court. This opinion comports with the views of eighteenth century politicians, who did not intend the eighth amendment to apply to prisoners; it has no place in the present day, more than 50 years after the Universal Declaration of Human Rights (UDHR) (1948) declared that no one shall be subjected to cruel or inhuman punishment.

In 2009, Attorney General Eric Holder ordered independent prosecutor John Durham to investigate whether the CIA had used any unauthorized.interrogation tactics in the years following 9/11. Durham discovered that the CIA had destroyed 92 video recordings of interrogations, but Holder concluded that most of the subjects had never been in CIA custody. Holder thereupon closed the remaining two investigations in 2012. If these were not interrogations by the CIA, then they may have been interrogations conducted by extraordinary renditions.

Holder's opinion, hence the Obama administration's opinion, is thus that whatever happens to a prisoner of war once he is handed over to a third party cannot be blamed on the American CIA officer who handed him into hostile hands.This reluctance to prosecute Americans under the terms of the Geneva Conventions may explain why the Obama administration has not sought indictments against the politicians who planned and executed the Iraq War. The laws of the United States do not apply to non-citizens; the Eighth Amendment is not broad enough to provide protection to foreign prisoners of war. The Geneva Conventions apply equally to all nationalities, but these rules are not recognized as law in American courts, partly because of reservations made by the Americans when the accords were adopted, and partly because American courts do not recognize international law as binding.

The Constitution is Dead

Our statutes don’t morph. They don’t change meaning from age to age to comport with whatever the zeitgeist thinks appropriate. When you read Chaucer, you try to figure out what the words meant when they were put down on paper. It’s the same thing with the law. --Justice Antonin Scalia

Scalia is correct when he says the Constitution is dead. Abraham Lincoln, who loved the Constitution well, declared in his inaugural address that

no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.

But the Supreme Court under the leadership of Justice Scalia is currently engaged in a project to change all our laws to comport with what the framers of our Constitution believed. When he is asked whether a new law is constitutional, Scalia goes directly to the text of the document. If he finds that the Constitution agrees with this new law, he approves the law. If he finds otherwise, he declares the law unconstitutional and throws it out.

Scalia is an expert interpreter of laws, but he is no literary critic. Otherwise, he would understand that every critic reads Chaucer differently. There is no absolute meaning in a work of literature. Each generation finds something different in Chaucer or Shakespeare. The new discoveries make these works of literature relevant again.

When Scalia argues that the Constitution is dead, he is arguing that we need a new document to take its place, or at least one that is completely altered. The Constitution is a fossilized relic of a bygone age. We should study it for its ideas, but we should not try to preserve them intact.

We should reform the Constitution so that it is easier to change. The framework that Justice Scalia praises so highly has broken down utterly. The Congress is so feeble that it can hardly pass a bill. The President is so powerful that he can violated the Bill of Rights with impunity, merely by declaring a war on some tiny group of people in a far corner of the globe.

The people have passed laws to repair flaws in the Constitution. Justice Scalia and his brethren strike them down. Their decision in Citizens United tells the people that they cannot decide what kind of government they want, but must accept the kind of government described by the framers. All power in the state arises from the people. If the Constitution prevents the people from making decisions based on new information, then it is the Constitution that must yield, not the people.

Nothing lasts forever. Everything eventually outlives its usefulness. The time has come to retire the Constitution and seek a replacement more suited to today.

A Tale of Two Spies

The Shafeek Nader Trust honored two whistleblowers at a ceremony on November 12. The ceremony was chaired by Laura Nader while her brother Ralph watched silently from the edge of the audience. They chose to honor William Binney, formerly of the National Security Administration (NSA) and John Kiriakou, formerly with the Central Intelligence Agency (CIA). Both of these men were portrayed as whistle-blowers who became targets of Obama's justice department.

The Trust used this awards ceremony as a stage to press for the impeachment of President Obama. They invited an ultra-conservative lawyer, Bruce Fein, to make their case. Fein has called for the impeachment of the last three presidents and made his reputation by participating in the impeachment of Richard Nixon. 

Conservatives have abused every part of the Constitution to keep themselves in power. Impeachment should be a last resort, as in the case of Nixon. In the case of Clinton, impeachment was a means to prevent the duly elected president from fulfilling his promises. Conservatives are now trying to destroy Obama's second term. No one who believes in democracy should support this movement.

The Trust chose to honor William Binney and John Kiriakou at one ceremony. One of them is a whistleblower; the other is a self-promoter. Both worked for intelligence agencies, Binney for the NSA and Kiriakou for the CIA. There the similarities end.

Binney worked as a codebreaker for the army and then the NSA for 40 years. He kept on doing the job because, as he says, it was fun. Binney is a tall, nerdy man with a pleasant voice and a wry sense of humor. He addressed the audience too briefly to display his humor fully. He was honored, among other things, for the 2007 New York Times video in which he described “Stellar Wind”, a top secret computer program of the National Security NSA. The NSA has been using this program to collect information on all Americans and then storing this information in a huge repository in Bluffdale, Utah. Binney, who clearly is knowledgeable on this subject, calculates that the Utah facility has the capacity to store 100 years of the entire world's electronic communication.

Binney worked for years as a code breaker and electronic espionage expert at the NSA. In 2001, the NSA proposed a new project that would cost billions of dollars. Binney coded a much more modest program that could be implemented for a fraction of the price. Binney called this program ThinThread and used it to sift through the electronic records coming in from overseas. Soon he noticed that his contractors were drifting away and computers were being requisitioned for another project. This project was Stellar Wind. His contractors told Binney they were eavesdropping on the communications of American citizens. Binney decided this was wrong so he informed the Congressional oversight committees. Since then, he has been testifying regularly.

In 2007, Binney agreed to appear in a 7-minute video for the New York Times. In the video, he spoke freely about Stellar Wind. He related an amusing incident when his home was raided by the FBI. He was in the shower and an FBI agent interrupted him while pointing a gun at his head. The FBI wanted to know if he had knowledge of any crimes. He said he did, and sat down with them (after first getting dressed) to explain the crime committed by Bush, Cheney, General Haynes (head of NSA) when they started using Stellar Wind to spy on the American people.

“I presented them with a problem,” he said. “Because these FBI agents did not have security clearance.” The problem for the government was that Binney did give up top secret information, but he did so at the point of a gun. Binney knew that the senior officer on the raid did have clearance, but could say nothing to the others. Binney reminded that officer that the Nuremberg defense would not work, that the officer could not claim that he was just following orders. To this date, Binney has not been charged with any crime. He believes the NSA needs better oversight: procedures that regulate collection of electronic data or selection of drone assassination targets need to be publicized, not executed in secret. The congress needs to act to define and limit the powers of the president in these areas.

Binney is the prototype of a whistleblower. He resigned his position with the NSA and began testifying before every committee of congress that invited him. He has told everyone who listens that he believes the actions of the NSA are unconstitutional and illegal. The second honoree at the evening's ceremony did not act from similar honorable motives.

John Kiriakou, formerly of the CIA. Kiriakou worked for the CIA for 14 years, beginning in 1990. The CIA had been directing various covert wars in Central America and the Caribbean at that time. Its proxies were widely believed to be involved in illegal activities, including dealing drugs, killing prisoners, and torture. None of these activities deterred Kiriakou from joining the CIA.

After 9/11, Kiriakou and the CIA became involved in covert activities in Afghanistan. Kiriakou says that he had the opportunity to learn how to torture prisoners using waterboarding but that he refused to take the course. Again, he was not bothered by the CIA's sanction of illegal activities. Kiriakou evidently read top secret agency reports, since he later reported that Abu Zubaida was waterboarded.

Kiriakou quit the CIA in 2004. He did not appear to have moral or legal issues with the agency. His motive was, evidently, to further his career. He immediately went to work in a series of private industry jobs related to his expertise in gathering intelligence.

Kiriakou gave an interview to ABC News in 2007 in which he claimed that waterboarding was effective in extracting data from Abu Zubaydah. After his ABC interview revealed Kiriakou as a whistle-blower, the former CIA agent gave interviews for other media organizations repeating his position that waterboarding was effective and necessary.

In 2009 the Obama administration ordered four secret memos released to the press. These memos disclosed to the first time that Abu Zubaydah had been waterboarded not once but 83 times, and that he stopped giving valuable information after his captors started mistreating him. In his 2009 book, Reluctant Spy: My Secret Life in the CIA's War on Terror, Kiriakou admitted that he had not been present at Abu Zubaydah's interrogation but instead relied had on internal CIA cables for his information.

In 2012 the Justice Department brought charges against Kiriakou for four violations of US official secrecy law, primarily based on email communications with the co-author of his book. The Attorney General had failed in its attempt to prosecute

In a question and answer period after his statement for the award ceremony, Kiriakou was asked why he was being prosecuted at this time. He avoided answering the question, but the answer is obvious from the charges against him. Three of the charges relate to revealing the name of a covert operative. In 2008, Kiriakou revealed to two journalists the name and telephone number of a covert CIA officer who had directed the waterboarding of Abu Zubaydah. The evidence for this was an email correspondence between Kiriakou and the journalists. Kiriakou's defense was that the journalist already knew the covert officer's name from another source. The evidence in the emails included in the court record did not support this.

The fourth charge against Kiriakou was that he lied to the Publications Review Board about the book he published in 2009. In the book, Kiriakou gave detailed descriptions of waterboarding, which at the time was a classified procedure. He told the Review Board, however, that this was a fictionalized account. He confided to his co-author in emails that the board would not probably not bother to check his story and that maybe they could get some classified material into the book. Kiriakou walked into a trap there. The most common charge used by the government against defendants is lying to a federal agent, a felony. The lying generally occurs during an investigatory interview, so defendants frequently avoid such interviews. Kiriakou could not avoid the interview because he had written a book. He should have taken care to tell the truth at the interview, but instead chose to deceive the FBI about the contents of his book. His hubris betrayed him.

The true whistle-blower acts selflessly. His moral sense is offended by the actions of his organization. He code of honor leaves him choice but to reveal company or government secrets to the public. William Binney expressed this by saying that he knew that spying on American citizens was wrong and he could take no part in it. But he never exposed individual operatives to danger, nor did he give details of his project away that would have permitted enemies to counteract them or use his inventions against the United States. His actions did not break any laws and he has never been charged with a crime.

Kiriakou, by contrast, did not take a personal risk by telling what he knew about waterboarding in the CIA. At the time he spoke, Kiriakou had already been out of the CIA for five years, so he did not fear dismissal. He did not oppose waterboarding on moral grounds. He argued that waterboarding was effective and almost painless, since it only took 30 seconds to elicit a confession from the most hardened Qaida soldier. Kiriakou revealed this information at least in part because he was contemplating writing a book about his experience and he needed to raise his public profile to sell the book.

Barack Obama became president in 2009. One of his first acts as president was to release four classified documents that described waterboarding by the CIA, as well as two Justice Department documents that were written at the request of the Bush administration to provide a legal opinion that waterboarding was legal, despite historical evidence that it had always been torture and therefore banned by the Geneva protocols. When Obama released these documents, Kiriakou could no longer be prosecuted for divulging classified material.

After Kiriakou disingenuously prayed that Obama might commute his sentence, Bruce Fein gave a speech calling for the impeachment of Barack Obama. Fein was a member of the team that brought impeachment charges against Richard Nixon. After serving as an assistant Attorney General in the Reagan administration, Fein also called for the impeachment of Bill Clinton and George Bush. His charges coincided with the charges that Ralph Nader has made against Obama, that Obama has unconstitutionally waged war against Libya and killed US citizens without a trial using drones.

Bruce Fein spoke for about five minutes giving as fine a jury summation as you will ever hear. Following his speech, Laura Nader, the chairwoman, called for those in attendance to sign a petition calling for President Obama to pardon Kiriakou. This petition made no sense. Kiriakou was caught by the justice department while making a series of blunders, not because he was exposing wrongdoing by the CIA but because he was marketing himself as a security consultant. The Justice department was doing its job by protecting CIA agents from having their identities compromised. The chances that President Obama would help Kiriakou were almost nil.

Jesselyn Radack from The Government Accountability Project (GAP) sat beside Kiriakou during the awards ceremony. Radack had already written a couple of articles, one on the Daily Kos and another in Salon, in which she declared her support for Kiriakou and denounced the Obama administration. The Obama administration deserves some criticism in other cases, but its behavior in this case seems appropriate. Kiriakou was a whistle-blower who acted in his own interest. Radack would have us ignore the facts of the matter (she never mentions that he publicly approved waterboarding) and also ignore the fact that Obama acted almost immediately upon his election to ban waterboarding and released previously classified documents that showed the extent of the problem.

Radack claims that the Obama administration is waging war against reporters. Not a single reporter was arrested or charged. The government charged insiders who revealed classified material to the press. The issue of protecting classified information should be entirely separate from the issue of whistle-blowing. Binney was a whistle-blower. He testified before congressional oversight committees. When they ignored him, he spoke to the press. He never revealed the identity of any NSA and he never revealed details of the classified projects he was working on. Binney wanted the leaders in the Bush administration to take the blame for breaking the law, not the low-level programmers who carried out the orders of others.

According to the indictment, Kiriakou specifically named a low-level CIA operative to three reporters. The information he gave them was forwarded to attorneys for inmates in Guantanamo, along with pictures, which were found by the jailers at Guantanamo. Kiriakou therefore endangered the life of a CIA operative, the crime with which he was charged and the one to which he pleaded guilty.

The awards ceremony had elements of a trial. The defendant, Kiriakou, could not testify fully because he had already signed an agreement with the court not to claim innocence of the crime to which he was pleading guilty. So he said he believed in his heart that he was innocent, then refused to proceed any further because, he claimed, he might have said too much already. Kiriakou pretended that he had no idea why the government had decided to prosecute him 5 years after he had given the interview to ABC. He knew very well that he was not being prosecuted for leaking information about torture. That was not one of the charges against him. The government was charging him with crimes committed after that interview and unrelated to it.

Radack took the part of his attorney in this drama. She said the only reason he was pleading guilty was so that he could be with his children while they were growing up. If Kiriakou had said that, he would have violated his plea bargain, but the substance of the plea bargain was not revealed to the audience. Just as in a criminal trial, the quasi lawyer, Radack, withheld information that made her quasi client, Kiriakou, look bad.

Radack was not Kiriakou's lawyer during his trial. She pleaded his case in the press, always arguing in ways calculated to minimize his guilt. Kiriakou pled guilty to only one count, that he lied to the FBI in an effort to get classified material into his book. Radack argued that the classified material was not published. She concealed the actual indictment from her readers. The crime he pled guilty to was lying to a federal investigator, not making classified material public.

The groups involved in this awards ceremony, the Shafeek Nader Trust and the Government Accountability Project, as well as the individuals who assisted them in this enterprise, Jesselyn Radack and Bruce Fein, should have chosen a better subject for their efforts. Everyone who leaks information is not a whistle-blower. Kiriakou leaked some information (the habitual use of waterboarding) while maintaining falsely that waterboarding was effective. Binney and Thomas Drake are principled men who speak the truth at great personal risk. Drake has lost his job and pension. Radack also made a difficult decision to publicly expose the lies of the Bush Justice Department. True whistle-blowers deserve our support. Self-promoters do not.

Other progressives have called for Obama's impeachment. Ralph Nader has accused Obama of committing war crimes that amounted to impeachable offenses. Glenn Greenwald believes that Obama could be impeached over the invasion of Libya. These people want to destroy the progressive agenda by attacking Obama on constitutional grounds. We are at war now, a war between the one per cent and the ninety-nine percent. This is an all-out, no holds barred battle. Progressives need to decide which side they support and not play intellectual games as if they are lecturing on a college campus.

Sources (partial list)

Brian Ross interview with John Kiriakou, Oct 12 2007, ABC News, http://abcnews.go.com/images/Blotter/brianross_kiriakou_transcript2_blotter071210.pdf

Scott Shane, Waterboarding used 266 times on two suspects, New York Times,http://www.nytimes.com/2009/04/20/world/20detain.html?_r=0,(Shane was one of the two journalists referred to in the Kiriakou indictment).

Jessylen Radack, The Truth about the Espionnage Act Prosecution of John Kiriakou, Government Accountability Project,

http://www.whistleblower.org/blog/42-2012/1894-the-truth-about-the-espionage-act-prosecution-against-whistleblower-john-kiriakou

Beauregard Legal Remedies

The City of Alexandria and developers, including JBG Corporation, have agreed on a development plan that will cause 7500 people to lose their homes within a short time. The City Planners present this plan as a done deal with no possibility of revision.

Issue: Is the Small Area Plan truly final?

The City Planning Commission claims that the developers have the right to build whatever they want on these properties. The Commission justifies their acquiescence by asserting that the developers plans would be much worse unless the Commission cooperates and enables the plan. This is absolutely untrue. The developers need to acquire building permits from the city for every structure they intend to erect. The city can attach requirements to a building permit so long as the property owner is compensated for the requirements.(1) The city has great latitude in what it requires of a builder of a single structure. The builder in this instance is proposing changes to the basic nature of the property that affect the City's Master Plan and the quality of life of other residents of the neighborhood. The city can add requirements at any time to bring the new construction into line with the Master Plan.

(1) Nollan v. California Coastal Commission, 483 US 825,842.

Issue: Are there any statutes in Virginia that protect the tenants from this action?

The tenants are protected by the Virginia Fair Housing Act, which prohibits landlords from discriminating against tenants in the sale or rental of property. 18 VAC 135-50-100(A)(1) Prohibits landlords from assigning any person to a particular section of a community, neighborhood or development or to a particular floor or section of a building because of race, color, religion, sex, handicap, familial status, elderliness, or national origin.

Issue: Can the developers avoid the Fair Housing Act by donating affordable housing units to the city? 

The developers have offered to donate two buildings to the city to be managed as affordable housing. The developer understands that it cannot segregate classes of people (based on race, color, religion, etc.) from the rest of the population in its development. The developer hopes to evade this legal prohibition by donating the affordable housing buildings to the city. These buildings will no longer form part of the landlord's property and therefore may not violate 18 VAC 35-50-100(A)(1). The effect of this plan will be exactly the same as if the developer owned the affordable housing units, and therefore they will still violate the Fair Housing Act.

Bill McKibben and Chris Hayes

Holly and I attended 350.org's DC rally today (11/18/12). Here is a clip that shows Bill discussing his project with Chris Hayes.

Visit NBCNews.com for breaking news, world news, and news about the economy

Redevelopment: The Ugly Truth

In a previous post, I outlined the joint efforts of JBG Corporation and Alexandria City Government (the Planners) to demolish 2475 low-income housing units located on Beauregard Road in West Alexandria (the Village). The Planners intend to destroy those units and force the residents to leave their homes, but have no plans to provide replacement housing for them. There is a very tentative plan to build or restore 875 affordable apartments but these will not be available until long after the current residents are forced to leave.  aside from a few, very speculative, affordable housing units (AFUs). In 30 years there may be 875 of these.

The Planners view the housing complex as an embarrassment, not just for what it is, but for who lives there. The complex is composed of 50-year-old, 3-story apartment blocks. The Planners believe these buildings can be replaced by a much more profitable mix of apartments, townhouses, and condominiums. The Planners also envision more office space, retail stores, and modifications to the streets that will improve traffic flow and well-paid office workers to settle here.

Mostly, the planners dislike the current residents, who are poor and non-white. Their ethnic cultures are diverse. Nearly half are latinos, many from Central America, but the residents also come from Ethiopia, Iran, and India. The Planners believe that these people must be removed before to make way for more affluent tenants. They envision a new neighborhood devoid of ethnic minorities. This new neighborhood, they hope, will have more expensive homes, pay higher taxes, and return more money to JBG in the form of rents or condominium sales.

This plan is not the first to expel minorities from their homes in the name of progress. It is filled with unfunded promises, like the provision of affordable housing and the streetcar that may happen some day. These extras are the bait that makes the project palatable to the city. Without them, the plan is simply a way for a corporation to make money.

Other redevelopment plans have promised much, delivered little:

Fillmore District, San Francisco, 1950s

In the early 1950s, the city of San Francisco developed a plan to remove unwanted minority populations and to reap great financial rewards. The city demolished much of the Fillmore district, a primarily African-American community in the geographical heart of the city. The Fillmore district was famous for its black culture, including jazz clubs that brought world-class talent to San Francisco in an era when the bay area was a cultural backwater. The redevelopment destroyed the cultural nexus of the region. Nineteenth-century wooden houses, for which the city is justly famous, were replaced by sterile cement-block housing projects where life took on a nightmarish quality. The neighborhood remained unsettled, with vacant lots and empty stores, for thirty years. The people evicted from their homes never returned.

Chavez Ravine, Los Angeles, 1950s

The city of Los Angeles decided to demolish the Mexican barrio in Chavez Ravine in 1950. The city planners had a lofty goal, the creation of a low-rent development called Elysian Fields. They had to evict Mexican-American homeowners and renters who had turned the neighborhood into a cultural center. Planners bought out the residents using eminent domain, threatening that those homeowners who did not sell immediately would receive less for their properties. Elysian Fields was never built. Instead, the cleared property was sold at a bargain-basement price to the Brooklyn Dodgers as an enticement to bring a major-league baseball team to Los Angeles. Once again, the city was happy, the developers were happy, and the LA Dodgers were happy, but the people who had lived in the area lost their homes and their community.

L'Enfant Plaza, Washington DC, 1966 (ongoing)

DC planners wanted to create a Parisian-style plaza through the L'Enfant Plaza project. The area south of the National Mall was a typical DC neighborhood of old wood frame houses and apartment houses. Those houses were demolished and replaced with an immense expanse of concrete pavement and office buildings. The office buildings encircle the plaza and cut it off from the National Mall. Most of the retail shops are underground. Urban spaces must appeal to people to be successful. L'Enfant plaza discourages pedestrian traffic by having an underground an underground mall and leaving the plaza itself devoid of any human-scale elements. People go to L'Enfant plaza to get to and from the Metro station work.

The National Capital Planning Commission (NCPC) recently proposed reviving L'Enfant Plaza by demolishing the Forrestal Building and restoring views of the Capitol building along Maryland Avenue. NCPC's plan recognized the shortcomings of the original plan and sought to rectify them by adding apartment houses in the area to humanize the vast stretches of concrete. JBG, which owns most of the office space around L'Enfant Plaza, rejected the NCPC plan. JBG instead proposed placing a 12-story office building in the center of the space. This would exacerbate the already severe problems of usability and design in the Plaza, but would have the effect of increasing JBG's rents.

The Village, Alexandria VA, 2014.

JBG intends to force Latinos and other immigrants out of their homes. JBG brags on its website that it is committed to giving back to the neighborhoods where it does business. This claim contradicts its intention to evict 2400 families from their homes. The scale of suffering is enormous. This redevelopment process will destroy 30% of the affordable housing in Alexandria, displacing about 7,700 people, including about 2500 children. JBG considers these people a liability because their presence will discourage upscale homebuyers from settling in the area. JBG plans to donate only two buildings, containing about 100 apartments, for affordable housing. These buildings are located at the farthest end of the property. They will not be visible from the main thoroughfare, Beauregard Avenue.

The neighborhood has changed. The new arrivals have displaced whites in the Village over the years. The white-oriented businesses in the area have withered. Landmark Mall is nearly empty of stores and has lost most of its upscale clientele, with a few remaining shops that cater to the new neighborhood.  Other new businesses in the area include a block of African restaurants on South James Mason Avenue at Seminary Avenue and a mall on Little River Parkway that contains a halal butcher, a latino bakery that also serves hot food, a pho restaurant, and the Grand International Market.

A major competitor for this new development project is the massive Kingstowne Town Center and Town Center Mall, only five miles away. The Kingstowne Town Center mall has much more space, a movie theater, and several restaurants. Walmart has located a store there. This area is far more attractive to potential home owners and apartment dwellers than the site JBG proposes to develop. It is likely, therefore, that this property will remain vacant and underutilized for 30 years after the houses on it are demolished.

The current project risks becoming a fiasco. The Planners have designed a city of the future that looks a lot like the past. Their new project will construct a grid system of streets to let residents stay in their cars right up to their doors, very much like every other urban area. The project will bring more cars into an area already jammed with them. The Planners' big idea to handle traffic is express buses with dedicated commute lanes. The wider, busier streets will divide neighborhoods and provide hazards that families with children will want to avoid. Instead of making it easier to get around by walking and bicycling, the plan will make it harder. The Planners fail to explain why the more affluent residents in their city of the future will start riding buses when they never have before.

Finally, the Planners intend to cut down hundreds of mature trees and replace them with concrete structures and pavement. Trees should be preserved and appreciated. The open spaces that contain them should be preserved and appreciated. The families who live in this area should be preserved and appreciated. Nothing in this plan makes any sense. The only reason to adopt it is to improve the bottom line of a corporation that has shown by this plan that it cares nothing at all for the city of Alexandria and the people who live here.

The City Council have given up on the city in the face of corporate bullying. They should fight this project hard starting now. It is not too late for them to preserve their self-respect.



Sources: Beauregard Tenant Survey Report on Survey Results, September 2012. Lincoln Park Strategies.

Beauregard Small Area Plan

Alexandria: Speculators Destroy a Neighborhood

by Allan Masri and Holly Masri

JBG Corp. and the City of Alexandria are planning a huge urban redevelopment project for Alexandria West.   This area, which lies roughly between Beauregard and 395, is bounded by the Southern Towers Apartments on the north, and extends south and east past Holmes Run.  It has no name, so I will call it the Village. 

There is a considerable distance between the Village and Old Town Alexandria, both physically and in attitude. Old Town is prosperous, caucasian. The Village has a rich mix of nationalities and languages; nearly all of its residents are poor. Old Town is a warren of narrow streets and high brick walls. The Village is composed mostly of 3-story brick multi-family structures, interspersed with many lawns, trees, parking lots, and playgrounds. Old Town is aging, with an average of 2 persons per residence; the Village is growing, with an average of three persons per residence, many of them children.

The Village is a green and pleasant place.  Accessed by concrete paths and stairs, the apartment buildings are distributed across the contours of the rolling hills, with areas of trees and grass between them.   Children use the paths for riding bicycles and scooters, and for play.  Residents can use these paths for walking to and from parking lots, or to a nearby mall. Other walkable destinations are Chambliss Park, Dora Kelley Nature Park, and Winkler Botanical Preserve, as well as two schools and adjoining playing fields, a recreation and nature center, shopping center, playgrounds, and swimming pools.    The apartments are sixty years old, but adequate for the people who live here. Many are immigrants with nowhere else to go, but the place is livable and the people are friendly.  

The Coming of BRAC

In 2011, the Department of Defense placed its Base Realignment and Closure (BRAC) project at the intersection of Beauregard and Seminary, about half a mile from the northern end of the Village. BRAC brought 6400 jobs to the area, with an average wage of $75,000 to $100,000. Alexandria's city government was gleeful about this, hoping to get $2 million a year in added tax revenues.

JBG Corp. was also gleeful. They manage 7,500 apartment units in the area, including 2,475 in the Villages. They got together with the Alexandria Planning Commission and came up with a plan to demolish the entire Village, leaving (perhaps) 865 "affordable housing" units, and replacing the rest with an unspecified number of "upscale" units . Note that there are approximately 850 ostensibly affordable units in the Village right now, thanks to some quick rent-raising by JBG. Two years ago there were 2,475 affordable units here-- three times as many.

 Not so overjoyed were the families that live in the Village. Many have already been forced out by the higher rents. All will eventually have to leave, although some may come back to rent the 865 affordable units, when they become available. But even these units are only hypothetical. Initially, JBG proposes to turn over 2 buildings with fewer than 100 affordable units to the City of Alexandria. There may be more later on--several years later on--but these may be appropriated by Alexandria City employees, who have a representative on the Affordable Housing Commission.

The Generosity of JBG

 JBG's company motto is "Building Smart, Thinking Green", but this is the company responsible for the concrete wasteland known as L'Enfant Plaza.  This new development they are planning will be less green than the one it is replacing. It will have less green space, thus adding to the urban heat island, and it will increase production of greenhouse gases.  The Village currently has buildings distributed over the rolling hills in a manner that conforms with the topography of the place. The blocks average 900 foot square, while the spaces between the buildings act as common areas with lawns, playgrounds, and trees. JBG's plan claims to preserve open spaces, but it will actually fill most of them with streets and more densely packed buildings. Some open spaces will remain, packed into the centers of the new buildings (on 400 foot square blocks); thus, these spaces will cease to be common areas, as they will only be usable by the residents/owners of particular buildings. 

 JBG's plan promises to provide a canopy of trees, but its initial action would be to cut down nearly all the trees on the property, some of them over 100 years old, as well as removing all trees and shrubbery from a currently wooded area on a steep slope. This plan risks erosion and directs increased runoff from streets and parking lots into the already stressed streams, Holmes Run and Turkey Run. In return for destroying all these trees and paving over another 20-50% of the property with streets, JBG plans to put in a green zone along Turkey Run, and to cede an additional 0.85 acre parcel elsewhere on the property to open space. But green zones already exist, throughout the Village. JBG will need to cut down numerous mature trees to attain the type of green zone illustrated in the plan. In fact, in the plan, the green zone is depicted with no trees at all.  The .85 acres of open space will not make up for the loss of up to 50% of the open space that now exists between buildings and between neighborhoods.

 JBG promises to deliver a community garden area. Such an area already exists. JBG promises to deliver a playing field. There are currently 3 tennis courts in the designated area where young men play soccer continuously after school. JBG will have to demolish the tennis courts to replace them with a field, thereby decreasing, not increasing, the available recreation space. But JBG intends to evict the soccer players, so preserving their tennis court is unnecessary.   

JBG has promised to limit the amount of grading done, but their street grid plan will be overlaid on the rolling hills of the site. A great deal of grading will be necessary to fundamentally transform the site from hills to flats.  But JBG will not consider leaving the site untouched or renovating existing buildings, because it intends to subdivide the property and build town houses. JBG intends to sell the townhouses for about $300,000 apiece, so if they build 3,000 townhouses, the sale should net them $9 billion. Naturally, JBG is ecstatic at the prospect.

The Villagers are Forced to Leave Their Homes  

While the JBG Plan claims that affordable housing in the area would eventually be eliminated anyway by market forces,  this is not true.  Many Villagers have already been forced out by JBG's rapidly-rising rents, but no market pressures are forcing JBG to evict 7,500 residents. The taxes have not been raised. The property is either owned outright by JBG or is being used to generate cash at historically low interest rates.

Like most stereotypical landlords, JBG just doesn't care about the people who have paid them rent for the last 50 years. Many of those people have already left, but some of the Villagers have lived here for 10 years or more. The Villagers have nowhere else to go. The Village contains 30% of Alexandria's low-income housing; when it is destroyed, many of the Villagers will have to leave Alexandria. They will take a part of the city's prosperity with them, for these are the people who do the low-paid jobs that keep the tourist-based industry of the town going. There will be no replacements, since there will be no housing for low-income workers. Without low-income workers, tourism will cease to be profitable. Many local businesses will fail. Ultimately, the downtown area will change from a vibrant place that tourists want to visit into a district of businesses and condominiums.

 The Alexandria City Council has completely failed to protect the Villagers from the predations of this giant corporation. The purpose of government is to protect the weak from the powerful, not to facilitate the eviction of its residents when some corporation feels they are standing in the way of progress.  What JBG intends is not progress, but profit, and JBG's plan is not a futuristic one, as they would have us believe. The plan imposes on the city the same car-oriented non-solutions that have caused urban sprawl all across the nation. The plan solves all problems by installing more streets, more freeway ramps, more expensive homes located far from jobs and markets.

JBG's rationale for their plans makes no sense. BRAC has already flooded the streets with more vehicles and clogged the freeway entrances.  The plan presumes that the 6200 new employees at BRAC will all want to live in the Village, but this is unlikely. JBG's plan will bring yet more people and cars into the area and will make more streets for them. The plan also advertises improved buses and dedicated bus lanes, but middle-class commuters don't use buses.  Poor people do.

The plan includes some shops that it assumes will be used by area residents. These shops will have to compete with existing shops, however. The area has several shopping centers within a mile or two of the Village. No matter what grocery store is installed, four or five competing stores are nearby.

The plan also proposes improvements to the Landmark Mall, only a mile away. This mall, however, has been losing stores for several years. The mall cannot compete with other shopping centers in the area right now. The developers cannot assume that it will suddenly turn around, just because its renewed success fits into their plans.

 The City Council has been sold a bill of goods. When it should have been protecting its own residents, the council has permitted outside investors to move in with a plan that will fundamentally alter the character of the city. The City Council should locate its' conscience, and stop taking money from greedy speculators.

The Victims Protest

A recent meeting of the victim relocation committee (officially called the Affordable Housing Advisory Committee) was interrupted by about 30 Villagers of various ages clad in neon tee-shirts emblazoned with the name of their organization, Tenants and Workers United. These people did not want to wait for the end of the meeting to make comments, largely because many of their children were getting restless. A few young men and women stood up, and each made essentially the same comment: We have lived here for years, our children go to school here, we have jobs here, and we want to stay. The message was delivered with quiet defiance.

 After they left, the committee's chairman was indignant. He had never expected to be considered the enemy, he said. No, the committee was there to help people relocate. But the committee has become the spokesman for JBG, a giant corporation that clearly cares nothing for the suffering it is causing. The committee had better be ready to receive more protests of a similar nature.  

And the winner is...BIG BIRD!!!

It's not easy being green. At the recent debate, Mitt Romney offered to cut just one tiny, useless, inexpensive government program... PBS. Unfortunately for him, it turns out to be a very popular one. Mittens wants to fire Big Bird?!? BAD idea. People will remember that.

Mitt has apparently turned over a new leaf, and rewritten every position he ever had. The day after the debate, he came out and said he was wrong about the 47 percent. He even apologized. But it was too late. Obama, who everyone says lost the debate, had been careful not to let him make his apology in front of 50 million people.

Larry O'Donnell had the best take on the debate, borrowing from a Denver Post writer, who wrote, “Like a bull to a matador, Romney time and again turned toward Obama to deliver attacks on the president's job performance, portraying him as clueless to his policies' impacts and hopeless in trying to turn the economy around."

That is a great description of the debate. Now, I've actually seen a bullfight and I can assure you that this is exactly what happens. The matador pretends not to see the bull. He turns his back on him. He taunts him, getting him to charge again and again, until... until the bull is so tired he can't stand up any longer. Then the matador takes out his sword, walks up to the bull, and plunges the sword into the bull's heart.

During the debate, Obama pretended to be taking notes, just like John Stewart pretends to take notes. Obama acted as if he had an important meeting somewhere else. He scowled. But he never reacted to anything that Romney was actually saying, even when Romney said the most preposterous things. Romney flatly denied that he had a plan to lower taxes by five trillion dollars; he also stated that he had no idea how corporations could avoid paying taxes by using loopholes and overseas accounts. Both of those statements were jaw droppers, which would have prompted an ordinary person to exclaim, "Say, wha?"

Obama didn't bite. But he was taking notes all right-- notes about how best to turn Romney's outrageous statements against him.

Romney has already walked back a couple of his claims. If he truly intends to abandon his tax cut “plan” (now that he has denied that he ever HAD it, on national TV), he has less than a month to explain what, exactly, he will be doing instead. It will be interesting to hear what he comes up with, because that tax cut was the way he proposed to revitalize the economy.

The clock is ticking.