Progressive Calendar 11.02.09
From: David Shove (
Date: Mon, 2 Nov 2009 07:12:07 -0800 (PST)
            P R O G R E S S I V E   C A L E N D A R   11.02.09

1. Kolstad/Rybak/redio 11.02 12:30pm
2. Society/capitalism  11.02 1:15pm
3. Peace walk          11.02 6pm RiverFalls WI
4. Local economy       11.02 6:30pm
5. UHCAN-MN mtg        11.02 7pm
6. Hmong women writers 11.02 7pm7
7. Full moon walk      11.02 7pm

8. Papa John Kolstad - Statement re: media bias
9. ed                - We support Kolstad for mayor. Sign on. 11.02
10. Fred Markus      - Paid campaign workers
11. Fred Markus      - The drill after the polls close
12. Fraser & Latimer - The case for instant-runoff
13. Michelle Gross   - Let this perfect storm sweep out city's pol "leaders"
14. ed               - New Broom rates Mpls city council & mayor
15. Glenn Greenwald  - Obama's secrecy shields presidential lawbreaking

--------1 of 15--------

Date: Sun, 1 Nov 2009 19:30:12 -0600
From: Sue <kolstadformayor [at]>
Subject: Kolstad/Rybak/redio 11.02 12:30pm

Anybody but Rybak

Mayoral candidates Papa John Kolstad, Al Flowers, Bill McGaughey and Bob
Carney are all telling potential voters, "Vote me your number one, vote
any of these others #2 and #3.  Vote for any one but Rybak!"  Instant
Run-off voting or Ranked Choice Voting has made this kind of cooperation
possible.  All that candidates feel that any of us would be better than 4
more years of Rybak.

The only forum that Rybak has agreed to this election is on Minnesota
Public Radio, 91.1 FM, Monday, Nov 2, 2009.  The program starts at 12:00
noon with Chris Coleman and Eva Ng in the St Paul Mayor race.  At 12:30 to
1:00 it is Papa John Kolstad challenging RT Rybak for Mayor of Mpls.  I
think Gary Eichten is the host.  There is no opening statement and a one
minute closing statement.  The rest wil be responding to questions.  I do
not know if they will allow follow up answers or comments to the other
candidate.  We'll see.

John Kolstad

--------2 of 15--------

From: Erin Parrish <erin [at]>
Subject: Society/capitalism 11.02 1:15pm

November 2: Minneapolis Branch American Association of University Women
Meeting. 9:30 AM: Are We Creating a Culture of Disrespect? 10:45 AM:
Lobbying- What's It Good for Anyway? 11:45 AM: Announcements. 1:15 PM:
Social Responsibility of a Capitalistic Society. Gale Mansion remodeling
is beginning. Meeting will be held at the First Christian Church.

--------3 of 15--------

From: Nancy Holden <d.n.holden [at]>
Subject: Peace walk 11.02 6pm RiverFalls WI

River Falls Peace and Justice Walkers. We meet every Monday from 6-7 pm on
the UWRF campus at Cascade Ave. and 2nd Street, immediately across from
"Journey" House. We walk through the downtown of River Falls. Contact:
d.n.holden [at] Douglas H Holden 1004 Morgan Road River Falls,
Wisconsin 54022

--------4 of 15--------

From: Leslie Reindl <alteravista [at]>
Subject: Local economy 11.02 6:30pm

"Designing for a Changing Future: ECONOMIC STABILITY THROUGH LOCAL

Monday, November 2
6:30 to 8:30 pm
Macalester College, Room 216 Campus Center (corner of Snelling and
Grand Aves.), St. Paul
Free.  Sign up at or show up at the door.

Environmental concerns, economic breakdown, and worries about peak oil and
other resource supplies-all are coming together at once. People are
seeking new ways to organize themselves. and their communities.  One
response is the new emphasis on building a local economy, to increase
sustainability and "community independence." What might such independence
actually mean?

This class will analyze the concept of "community independence" and
construct a framework within which the needs of a community might be
addressed through creative thinking, investment, and cooperative work.
It will offer specific ideas for evaluation in terms of their do-ability
and contribution to community independence.

Given by Wilhelm Reindl, independent energy entrepreneur, former
researcher at UofM and Bureau of Mines, now using experience of growing up
on a small farm in Bavaria, Germany, to experiment with changes in farming
on his small farm in Wisconsin.

--------5 of 15--------

From: Joel Albers <joel [at]>
Subject: UHCAN-MN mtg 11.02 7pm

next UHCAN-MN organizing mtg
monday Nov 2, 7PM
Walker Church, 3104 16th ave s,on corner, Mpls, (1 block from Lake str.
and Bloomington Ave). mtg in Gallery lower level.

-Reportbacks: update on federal reform, Trinity Church health
Unity Bldg mtg, Bioneers Conference, etc
-Nov 20-21 Retreat fri 7pm to sat 11pm ( fun, food, & creative teach-
-forming a direct action working group
-Bring your ideas.

we usually have hot tea, snacks

Joel Albers Clinical Pharmacist, Health Economics Researcher Universal
Health Care Action Network - MN Community/University Collaborative
Research email: joel [at] phone: 612-384-0973

--------6 of 15--------

From: Richard Broderick <richb [at]>
From: "Kimberly Nightingale" <editor [at]>
Subject: Hmong women writers 11.02 7pm

November 2nd, 2009--If you're interested in hearing fresh new voices by
emerging Hmong American writers and new works-in-progress by more
established Hmong American writers, check out the Lowertown Reading Jam at
the Black Dog this Monday November 2, 7-8:30 p.m!

The featured readers include Gaoiaong Vang, Mai Yang Xiong, Linda Hawj,
Mai Neng Moua, and May Lee-Yang.

Reading by Hmong Women and Girls
Monday, November 2 from 7-8:30 PM
Black Dog Cafe, 308 Prince Street (kitty corner from St.
Paul Farmer's Market)
Why: Good literature

The Saint Paul Almanac is presenting a series of ten Reading Jams, each
curated and produced by well-known Saint Paul writers and spoken word
artists, at Black Dog Café on the first Monday of each month, which began
in October 2009. In addition, a variety of independent coffee shops and
public venues throughout the city are holding readings by contributors to
the Saint Paul Almanac in the weeks following the launch. More information
about the Reading Jams and related events here.

We intentionally expand language/communication experiences with a visual
artist rendering each reading visually, and an interpreter signing each

Come check it out and support the literary arts in Saint Paul!
The Saint Paul Almanac is sponsored by KFAI: Radio Without Boundaries, the
City of Saint Paul, the Saint Paul STAR Program, the Metropolitan Regional
Arts Council, the Lowertown Future Fund of The Saint Paul Foundation, Twin
Cities Daily Planet, the Black Dog Coffee and Wine Bar, and Friends of the
St. Paul Public Library.

--------7 of 15--------

From: Sue Ann <seasnun [at]>
Subject: Full moon walk 11.02 7pm
November 2

Full Moon Walk at Sacred Coldwater Spring
Monday, November 2, 2009 at 7 PM

The Hunter's or Blood Moon is the traditional time for harvesting and
stockpiling meat for winter (not just because there's a general election
Nov. 3). With leaves off the trees the views along the Mississippi gorge
will open.

Traditional group howl!

Directions: Coldwater is south of Minnehaha Park, in Minneapolis. From Hwy
55/Hiawatha, turn East (toward the Mississippi) at 54th Street, take an
immediate right, & drive South on the frontage road for ˝-mile past the
parking meters, through the cul-de-sac & the gates. Follow the curvy road
left & then right down to the pond, next to the great willow tree.

--------8 of 15--------

Date: Sun, 1 Nov 2009 15:14:00 -0600
From: John Kolstad <jkolstad [at]>
Subject: Statement from Papa John Kolstad re: media bias

I agree with those who identify the Strib editorial bias.

They repeatedly wrote that none of the challengers for mayor were known.
Al Flowers and Bill McGuahey have had presence on cable TV for years. Both
are known in this city for their outspoken criticism of city policy and
police misconduct.

"Papa John Kolstad" as a musician, performer and political activist has
had 40 years of visibility and notoriety.  This includes TV, cable, radio,
recordings, newspaper reports and articles, magazines, internet and blogs
as well as presentations before the legislature. I am featured or
mentioned in a number of published books including one about Garrison
Keillor's Prairie Home Companion and the West Bank Boogie which has an
entire section about me. I am variously described as "famous",
"legendary", "mainstream" "institution" and one of the twin cities' great
performers and musicians. I have fans that include state wide public and
elected officials and even members of the state Supreme Court.

I have extensive experience on boards, committees, councils and task

I have a reputation as an advocate for small independent business and for
working for a real solution to the health care mess. In this capacity I
have been a featured speaker throughout the state, been a guest on many TV
and radio shows, testified before the state legislature, and had op ed
articles published in the Star Tribune. I was on 2 panels on health care
organized by Congressman Keith Ellison.  One of the panels also featured
Representative John Conyers.

What may be most astonishing is that Strib editor Lorie Sturdyvant
featured me and another citizen in an editorial piece for our years of
hard work on public issues for which we received no pay and no discernable
reward. She honored us for our selfless civic commitment.

I also ran for Attorney General in 2006 and received 41,000 votes.

It is beyond credulity that the Star Tribune refers to "Papa John Kolstad"
as "unknown".

Steve Brandt always refers to me as "Republican endorsed" while this is
true, it is misleading without the additional information that I head a
coalition of insurgent candidates. The Minneapolis Republicans and
Minneapolis Independence parties endorsed me with full knowledge that they
were supporting a coalition candidate and knowledge of my issues. In
addition, I have support from Greens and disaffected DFLers some of whom
have personally and formally signed a letter of support for me.

Mr. Brandt implies that I am a Republican. This is an attempt to frame me
in a negative light. The truth is that I was a Democrat for over 30 years,
was involved in the party. I was director in my senate district, alternate
to the state central committee. I was also the state coordinator for a
Democratic presidential candidate and Floor manager at a Democratic
national convention. My principles have not changed over the years, the
party has. Mr. Brandt may not know the Minneapolis Republican party is now
led by a new, moderate group. This group supports small business, lower -
fairer property taxes and fairer treatment of residents of the city. On
these issues the entire coalition is in agreement.

The distorted, biased, insufficient coverage by the Strib is rendering the
paper irrelevant. The tragedy is, that the community papers and on line
news services have done an even worse job. Why is the news media in
Minneapolis afraid of any challenge to the DFL machine?

Most media and news coverage has been distorted by reporters' attitudes
that if a candidate did not have a significant amount of money early they
were not viable and thus the media marginalized the candidates; never
mentioning the issues of the challengers. Not one of these reporters who
have made this assumption has interviewed me and asked me how I could be
viable without vast sums of money. If they had, I would have told them our
coalition has candidates and supporters in every ward and most precincts.
Residents are very upset with the arrogant out of touch mayor and city
council. They are looking for change and are looking for alternatives.
This makes me, and the others viable; especially when you throw in my 2
major party endorsements. Ironically, some of these same reporters condemn
the big money in elections; then reward it by only covering those who sell
out to powerful, well-financed interests.

If elections are about how much money a candidate raises - we can just do
away with voting and simply put the candidate who raises the most money in
office.  Then the money can go into the city treasury to help pay for city

I cannot predict the results on Nov 3, but I expect there will be some
surprises.  The mayor avoiding any public forums with challengers may just
come back to bite him.

--------9 of 15--------

From: ed
Subject: We support Kolstad for mayor. Sign on. 9/29 (fwd)


I, David Shove, appeal to you to sign on to this public letter of support
for Papa John Kolstad. Please respond to shove001 [at] Be the first
in your neighborhood. I will send out updates. Please suggest other
signers. They need not live in Mpls.

-David Shove

We the undersigned support Papa John Kolstad for mayor of Minneapolis.

RT Rybak has failed to properly manage the city. Rybak has failed to
supervise the police department. Rybak has worked actively with the city
council to concentrate power downtown, and to shut out the voices of the
residents.  Rybak has actively pushed to increase Property Taxes by
forcing up property valuations and increasing the tax rate. The Property
Tax is the most regressive tax there is. This callous policy is harming
low and fixed income people and small business. Rybak and the City Council
often speak of their support for small business, but their actions
directly harm small business.

Papa John Kolstad will actively promote public involvement, will make the
city more attractive, friendly and affordable for its residents, promote
small businesses, and promote public safety through a better supervised
police force. Papa John Kolstad will immediately ask for a complete audit
of the City's spending over the past few years. Essential Services, like
Police and Fire, must be funded. Non-essential services and expenditures
need to be reviewed on a case by case basis, with the intention of cutting
low priority programs. Papa John Kolstad will not force people on low or
fixed incomes to pay for programs of questionable value. He will examine
the Property Tax and work to remove any inequities. Papa John Kolstad
believes that providing assistance to small business, as opposed to heavy
taxes plus fee upon fee, will unleash this economic force, create new jobs
and increase revenue to the City.

Rybak is clearly using the Mayors Office as a stepping stone to run for
governor. Papa John Kolstad is committed to the city of Minneapolis and
will serve the full four years.

In a recent email to supporters, Rybak said, "For the better part of two
years I traveled the state to let people know what I knew: he (Obama)
would be a president who would inspire us to take on the big challenges
of our time".

Papa John Kolstad says, "No wonder the City is in such bad straits, the
Mayor has not been here for the better part of 2 years. We need a Mayor
who will travel around the City and find out what the Minneapolis
citizens know and what the critical needs and problems are. Then work to
solve them".

To bring about this important change to our City, we the undersigned
know that we must take an active and public role to bring about the
change this City needs.

Supporters: [so far]
 Danene Provencher
 Mike Whelan
 Lydia Howell
 Dave Garland
 Dori Ullman
 Fred Markus
 Michael Cavlan RN, candidate ward 8
 Alan Hancock
 Richard Broderick
 Amber Garlan
 Suzanne Linton
 Gary Carlson
 Tom Cleland
 Paul Busch
 Robert Halfhill
 David Unowsky
 Alan Carlson
 Jan McGee
 James Mayer
 Andy Hamerlinck
 Jane Kirby
 Dean Zimmerman
 L Hogan
 Mary Devitt
 Carol Mellom
 Bob & Judy Bjorke
 Anthony Hunnicutt
 JOhnny Hazard
 Eric Gilbertson
 David Shove for YOU

[Contact John at 612-722-6649, kolstadformayor [at]
 Volunteer at kolstadformayor [at]
 Send checks to Papa John Kolstad for Mayor
                2830 E 22nd St Mpls 55406]

--------10 of 15--------

Date: Sun, 1 Nov 2009 05:40:58 -0800 (PST)
From: Fred Markus <fredric.markus [at]>
Subject: Paid campaign workers

I posted this on Mpls Issues this morning because it gets my goat when Tim
Bonham's tongue gets too sharp:

You can't make bricks without straw. That's a truism that hails from
biblical times. Similarly, candidates for local office have to confront
the intricacies of election laws, develop target marketing strategies,
ride herd on the volunteers that do step forward, and consider where they
fit in the larger political edifices that are being built or maintained.

Having a campaign manager is equivalent to having a construction foreman
and even in the most egalitarian surroundings such as the Green Party
purports to maintain, the notion of "primus inter pares" (first among
equals) goes down much more smoothly if hard cash is laid out for
experienced operatives.

It is predictably ironic that the most able volunteers are frequently also
the busiest people around. In the digital world that is coming to dominate
the tasks of information management, competition for services means having
to learn what the market will bear. In individual circumstances, the
demands of job and family bring a harsh realization that there are only so
many hours in the day. What is tops in my mind is the need for reliable
and sustained effort and there just aren't that many bales of straw lying
around free for the taking.

Grassroots activism is a tough gig made more challenging by strings that
so often come with serious money. Jeering at the Green Party because they
operate on rock soup and pine needle tea avoids coming to grips with the
sturdy bricks they do manage to produce and I trust an informed electorate
will understand this.

Fred Markus Phillips West

--------11 of 15--------

Date: Mon, 02 Nov 2009 02:59:09 -0000
From: Fred Markus <Fredric.markus [at]>
Subject: The drill after the polls close.

Getting election results

One of the biggest changes from previous elections is the time it will
take before final election results are known. Because Minneapolis is using
Ranked Choice Voting, the election night vote tallies will look different
from previous years, and final results in each race may not be available
for several weeks.

On election night, results will be posted on the Minnesota Secretary of
State's Web page, showing how many first, second, and third choice
rankings each candidate received. The first choice rankings are the
unverified first round results from election night.

Because of the way Ranked Choice Voting works, it is not possible to
simply add up numbers in the columns to get final results. If no candidate
receives the required number of first-choice votes to be elected after the
first round of counting, a process of eliminating candidates and
considering subsequent choices begins.

Since there is no federally- or state-certified voting equipment capable
of counting a Ranked Choice Voting election, the election will be
hand-counted to determine the winners. Minneapolis election judges will
begin working on the hand-count Nov. 4, and winners in individual races
will be known as the count proceeds in the coming weeks. The hand-counting
is tentatively expected to be complete by Dec. 21.

You can find updates on the hand-counting process and the election results
as they are compiled by visiting the City's elections Web page.

In the hand-count process, City Council Ward offices will be counted
first. A random drawing was conducted in October to determine the order in
which the Wards are being counted. The order is as follows: Ward 13, Ward
12, Ward 2, Ward 11, Ward 6, Ward 7, Ward 5, Ward 10, Ward 4, Ward 3, Ward
1, Ward 8, Ward 9.

As City Council Wards are counted, periodically Park District office
results will become available (because districts are in multiple Wards).
City-wide office results will available last, including results for Mayor,
Park and Recreation Board at-large, and Board of Estimate and Taxation.
Please note that the ballot question (in which voters vote yes or no) does
not use Ranked Choice Voting and will not be hand-counted.

--------12 of 15--------

Subject: Fraser and Latimer: The case for instant-runoff

The following appeared yesterday in the STRIB:

Don Fraser and George Latimer: The case for instant-runoff voting is clear
Name any common flaw in the current system, and IRV offers a solution.


What if we held an election and nobody came?

Before you laugh and turn the page, be mindful that we're getting
perilously close to that scenario these days; earlier this month, less
than 8 percent of New York City's voters turned out for primary elections.
And, if you're inclined to brush off that statistic with a "not in
Minnesota" sense of superiority, sorry; last month, only 7 percent of
voters turned out for St. Paul's primary. Like our endless recount in the
Coleman-Franken race, single-digit turnout is an indicator that our voting
system needs a tuneup.

Fortunately, St. Paul voters can do just that on Nov. 3 by adopting a
proposal for instant-runoff voting -- also called ranked-choice voting --
in mayoral and City Council elections.

Minneapolis voters adopted instant-runoff voting in 2006 by a nearly 2-1
ratio and will use it for the first time Nov. 3. Looking at how the city
has prepared for this event, we are confident the rollout in Minnesota's
biggest municipality will be smooth and well-received. While new in
Minneapolis, IRV has been successfully used in cities across America and
in democracies around the world, including Ireland and Australia.

IRV allows voters to rank candidates on the ballot in order of their
preference. In municipal elections, IRV eliminates the expense of a
separate primary election -- and its single-digit turnout -- but works
just like a traditional two-step election in that it allows a field of
candidates to be narrowed to a majority winner. Studies indicate that IRV
leads to significantly higher levels of voter participation and is
well-understood and preferred by voters.

IRV also promotes better elections and better governance. All candidates
have a real opportunity to shape the debate and to win votes. IRV also
motivates candidates to keep their campaigns on a higher road in terms of
tone and substance in order to appeal to voters as a second choice.
Negative campaigning doesn't produce the same rewards under IRV as it does
under traditional elections. Anecdotal evidence on this point is
plentiful, including our observation of this year's Minneapolis Park Board
and some of the City Council races, contests that have been very
contentious in the past.

In state elections, IRV better addresses the realities of Minnesota
politics. The current system, designed for an era in which there were
almost always only two parties on the ballot, is no longer working as well
as it once did. Instead, plurality elections -- including the past decade
of gubernatorial elections -- have become the new Minnesota normal. In
other words, in recent elections, more voters have voted against our
winners than for them.

And, at the same time, viable third-party candidates are being
marginalized. Some voters hold back supporting these candidates because
they fear throwing their vote away -- and in doing so helping elect their
least favorite candidate. This sort of strategizing means that too many of
our citizens are voting for their second choice and that legitimate voices
are being shut out of elective office.

Low turnout, negative campaigning, minority winners, defensive voting,
premature narrowing of candidate options -- voters are right to wonder if
there isn't a better way to express their preferences and make their vote
count. IRV is that better way.

As retired politicians, our campaigning days are well behind us. Whether
IRV is adopted in St. Paul and elsewhere is not a part of our personal
political calculus. It is, however, vitally important to us as citizens
and as members of our communities. We look forward to using IRV in our
cities and to the day when we will use it in state partisan elections and
return to the hallmark of a strong democracy -- majority rule -- without
the need for a costly Georgia-style runoff election.

We are proud to stand with hundreds of current and former elected
officials, with political parties across the ideological spectrum and with
nonpartisan organizations, including the Minnesota League of Woman Voters,
the Minnesota Council of Nonprofits, Take Action Minnesota and the
Minnesota Public Interest Research Group, in urging St. Paul voters to
approve IRV.

--------13 of 15--------

From: Michelle Gross <mgresist [at]>
Let this Perfect Storm Sweep Out City's Political "Leaders"

Each day's paper brings news of another episode in the shameful history of
the Minneapolis police department: the assorted depravities of the Metro
Gang Strike Task Force, a $500 grand settlement for an innocent victim of
a brutal cop (who has yet to be disciplined), death of a community member
from multiple Taser shocks, the Derryl Jenkins incident, and a number of
other lawsuits that will soon result in large payouts.  With three
separate FBI investigations involving the MPD, it's certain even more
outrageous conduct will soon be exposed.

But no one should really be surprised.  The confluence of lack of
discipline, lack of supervision and lack of leadership by city officials
has led to the perfect storm threatening to overtake the Minneapolis
Police Department, and the city with it.  This storm of mismanagement by
the mayor, city council and police administration has been brewing for a
long time.

It's not like City officials didn't know.  Community activists sounded the
alarm over and over.  $14.5 million in payouts for police actions in the
last four years is a strong signal.  Yet, afraid to lose the precious
police federation endorsement, these politicians have cowed to the cops
over and over.

It's time for real leadership to bring about real change.  The same city
officials who got us into this mess cannot get us out of it.  The entire
Minneapolis city council is up for election along with the mayor.  Let the
people send a strong message that we are sick of having our taxes pay for
the cops' lack of discipline and accountability.

The community is just bursting with great ideas about how to reduce police
brutality and increase police accountability.  Just a few that have been
    * Requiring cops to purchase their own professional liability
insurance (just like doctors, nurses and other professionals).  If a cop
has too many complaints and suits, he or she will become uninsurable which
would help to remove bad cops from the force.
    * An elected police commission over both the police chief and the
civilian review authority
    * An elected police chief
    * Requiring all police judgments and settlements to come from the
police department budget rather than the general fund or, better yet,
out of their retirement fund
    * A stronger Civilian Review Authority (CRA) with subpoena power and
the power to discipline
    * Stronger policies, especially around the use of Tasers and the
use of force in general

During the terms of this city council and Mayor Rybak, we have seen the
collapse of federal mediation, the dismantling of the CRA and sharp
increases in police brutality incidents, including outrageous conduct
during the Republican National Convention.  Yet, the city's leadership
remains silent on policing issues.  Let this perfect storm sweep away
these deadwood politicians and bring forth a new breed of leader who will
face these issues and set into place solutions.  Time for a change!

Michelle Gross, President, Communities United Against Police Brutality
Mpls candidates:
John Kolstad     mayor
Al Flowers       mayor
Allen Aigbogun   ward 2
Melissa Hill     ward 3
Kenya McKnight   ward 5
Michael Tupper   ward 6
Michael Katch    ward 7
Michael Cavlan   ward 8
David Bicking    ward 9
Todd J Eberhardy ward 9
Kim Vlaisavljevich ward 10
Charley Underwood  ward 12
Dave Wahlstedt   park board

--------14 of 15--------

New Broom rates Mpls city council & mayor

grade   ward/incumbent

F       1/Ostrow        open.
C-      2/Gordon
D-      3/Hofstede
F       4/Johnson
F       5/Samuels       WORST of 13.
F       6/Lilligren     SECOND WORST
F       7/Goodman
C-      8/Glidden
C-      9/Schiff
D+      10/Remington    open.
D-      11/Benson       open.
D-      12/Colvin-Roy
D+      13/Hodges

F       mayor Rybak

[This has been printed here before at greater length; it is here as
reminder to sweep them out. Don't give a 1 or 2 or 3 to any incumbent.-ed]

--------15 of 15--------

Obama's Latest Use of 'Secrecy' to Shield Presidential Lawbreaking
by Glenn Greenwald
What was once depicted as a grave act of lawlessness - Bush's NSA program
- is now deemed a vital state secret.
Published on Sunday, November 1, 2009 by
Common Dreams

The Obama administration has, yet again, asserted the broadest and most
radical version of the "state secrets" privilege - which previously caused
so much controversy and turmoil among loyal Democrats (when used by
Bush/Cheney) - to attempt to block courts from ruling on the legality of
the government's domestic surveillance activities.  Obama did so again
this past Friday - just six weeks after the DOJ announced voluntary new
internal guidelines which, it insisted, would prevent abuses of the state
secrets privilege.  Instead - as predicted - the DOJ continues to embrace
the very same "state secrets" theories of the Bush administration - which
Democrats generally and Barack Obama specifically once vehemently
condemned - and is doing so in order literally to shield the President
from judicial review or accountability when he is accused of breaking the

In the case of Shubert v. Bush, the Electronic Frontier Foundation
represents numerous American citizens suing individual Bush officials,
alleging that the Bush administration instituted a massive "dragnet"
surveillance program whereby "the NSA intercepted (and continues to
intercept) millions of phone calls and emails of ordinary Americans, with
no connection to Al Qaeda, terrorism, or any foreign government" and that
"the program monitors millions of calls and emails . . . entirely in the
United States . . . without a warrant" (page 4).  The lawsuit's central
allegation is that the officials responsible for this program violated the
Fourth Amendment and FISA and can be held accountable under the law for
those illegal actions.

Rather than respond to the substance of the allegations, the Obama DOJ is
instead insisting that courts are barred from considering the claims at
all.  Why?  Because - it asserted in a Motion to Dismiss it filed on
Friday - to allow the lawsuit to proceed under any circumstances - no
matter the safeguards imposed or specific documents excluded - "would
require the disclosure of highly classified NSA sources and methods about
the TSP [Terrorist Surveillance Program] and other NSA activities" (page
8).  According to the Obama administration, what were once leading
examples of Bush's lawlessness and contempt for the Constitution - namely,
his illegal, warrantless domestic spying programs - are now vital "state
secrets" in America's War on Terror, such that courts are prohibited even
from considering whether the Government was engaging in crimes when spying
on Americans.

That was the principal authoritarian instrument used by Bush/Cheney to
shield itself from judicial accountability, and it is now the instrument
used by the Obama DOJ to do the same.  Initially, consider this:  if
Obama's argument is true - that national security would be severely
damaged from any disclosures about the government's surveillance
activities, even when criminal - doesn't that mean that the Bush
administration and its right-wing followers were correct all along when
they insisted that The New York Times had damaged American national
security by revealing the existence of the illegal NSA program?  Isn't
that the logical conclusion from Obama's claim that no court can
adjudicate the legality of the program without making us Unsafe?

Beyond that, just consider the broader implications of what is going on
here.  Even after they announced their new internal guidelines with great
fanfare, the Obama administration is explicitly arguing that the President
can break the law with impunity - can commit crimes - when it comes to
domestic surveillance because our surveillance programs are so secret that
national security will be harmed if courts are permitted to adjudicate
their legality.  As EFF put it last July (emphasis in original),
government officials:

seek to transform a limited, common law evidentiary into sweeping immunity
for their own unlawful conduct. . . . [They] would sweep away these vital
constitutional principles with the stroke of a declaration, arrogating to
themselves the right to immunize any criminal or unconstitutional conduct
in the name of national security. . . .

For that reason, as EFF pointedly noted the last time the Obama DOJ sought
to compel dismissal based on this claim:  "defendants' motion is even more
frightening than the conduct alleged in the Amended Complaint."  Think
about that argument:  the Obama DOJ's secrecy and immunity theories are
even more threatening than the illegal domestic spying programs they seek
to protect.  Why?  As EFF explains (click image to enlarge)

Can anyone deny that's true?  If the President can simply use "secrecy"
claims to block courts from ruling on whether he broke the law, then what
checks or limits exist on the President's power to spy illegally on
Americans or commit other crimes in a classified setting?  By definition,
there are none.  That's what made this distortion of the "state secrets"
privilege so dangerous when Bush used it, and it's what makes it so
dangerous now.  Back in April, 2006 - a mere four months after the illegal
NSA program was first revealed, and right after Bush had asserted "state
secrets" to block any judicial inquiry into the NSA program - here is what
I wrote about the Bush administration's use of the "state secrets"
privilege as a means of blocking entire lawsuits rather than limiting the
use of specific classified documents:

[Q]uite unsurprisingly, the Bush administration loves this doctrine, as it
is so consistent with its monarchical view of presidential infallibility,
and the administration has become the most aggressive and enthusiastic
user of this doctrine . . . . As the Chicago Tribune detailed last year,
the administration has also used this doctrine repeatedly to obstruct any
judicial proceedings designed to investigate its torture and rendition
policies, among others . . . . This administration endlessly searches out
obscure legal doctrines or new legal theories which have one purpose - to
eradicate limits on presidential power and to increase the President's
ability to prevent disclosure of all but the most innocuous and
meaningless information.

That was the prevailing, consensus view at the time among Democrats,
progressives and civil libertarians regarding Bush's use of the state
secrets privilege:  that the privilege was being used to exclude the
President from the rule of law by seeking to preclude judicial examination
of his conduct.  Plainly, Obama is now doing the same exact thing - not
just to shield domestic surveillance programs from judicial review but
also torture and renditions.  Is there any conceivable, rational reason to
view this differently?  None that I can see.

Note, too, how this latest episode eviscerates many of the excuses made
earlier this year by Obama supporters to justify this conduct.  It was
frequently claimed that these arguments were likely asserted by holdover
Bush DOJ lawyers without the involvement of Obama officials - but under
the new DOJ guidelines, the Attorney General must personally approve of
any state secrets assertions, and Eric Holder himself confirmed in a Press
Release on Friday that he did so here.  Alternatively, it was often
claimed that Obama was only asserting these Bush-replicating theories
because he secretly hoped to lose in court and thus magnanimously gift us
with good precedent - but the Obama administration has repeatedly lost in
court on these theories and then engaged in extraordinary efforts to
destroy those good precedents, including by inducing the full appellate
court to vacate the decisions or even threatening to defy the court orders
compelling disclosure.  No rational person can continue to maintain those

Is there any doubt at this point that, as TalkingPointsMemo put it in a
headline:  "Obama Mimics Bush on State Secrets"?  Or can anyone dispute
what EFF's Kevin Bankston told ABC News after the latest filing from the
Obama DOJ:

The Obama administration has essentially adopted the position of the Bush
administration in these cases, even though candidate Obama was incredibly
critical of both the warrantless wiretapping program and the Bush
administration's abuse of the state secrets privilege.

Extreme secrecy wasn't an ancillary aspect of the progressive critique of
Bush/Cheney; it was central, as it was secrecy that enabled all the other
abuses.  More to the point, the secrecy claims being asserted here are not
merely about hiding illegal government conduct; worse, they are designed
to shield executive officials from accountability for lawbreaking.  As the
ACLU's Ben Wizner put it about the Obama DOJ's attempt to use the doctrine
to bar torture victims from having a day in court:  "This case is not
about secrecy. It's about immunity from accountability."  That's what
Obama is supporting:  "immunity from accountability."

What makes this most recent episode particularly appalling is that the
program which Obama is seeking to protect here - the illegal Bush/Cheney
NSA surveillance scheme - was once depicted as a grave threat to the
Constitution and the ultimate expression of lawlessness.  Yet now, Obama
insists that the very same program is such an important "state secret"
that no court can even adjudicate whether the law was broken.  When
Democrats voted to immunize lawbreaking telecoms last year, they
repeatedly justified that by stressing that Bush officials themselves were
not immunized and would therefore remain accountable under the law.
Obama himself, when trying to placate angry supporters over his vote for
telecom immunity, said this about the bill he supported:

I wouldn't have drafted the legislation like this, and it does not resolve
all of the concerns that we have about President Bush's abuse of executive
power. It grants retroactive immunity to telecommunications companies that
may have violated the law by cooperating with the Bush administration's
program of warrantless wiretapping. This potentially weakens the deterrent
effect of the law and removes an important tool for the American people to
demand accountability for past abuses.

Yet here is Obama doing exactly the opposite of those claims and
assurances:  namely, he's now (a) seeking to immunize not only telecoms,
but also Bush officials, from judicial review; (b) demanding that courts
be barred from considering the legality of NSA surveillance programs under
any circumstances; and (c) attempting to institutionalize the broadest
claims of presidential immunity imaginable via radically broad secrecy
claims.  To do so, he's violating virtually everything he ever said about
such matters when he was Senator Obama and Candidate Obama.  And he's
relying on the very same theories of executive immunity and secrecy that -
under a Republican President - sparked so much purported outrage.  If
nothing else, this latest episode underscores the ongoing need for
qCongressional Democrats to proceed with proposed legislation to impose
meaningful limits and oversight on the President's ability to use this
power, as this President, just like the last one, has left no doubt about
his willingness to abuse it for ignoble ends.

Copyright 2009 Salon Media Group, Inc. Glenn Greenwald was previously a
constitutional law and civil rights litigator in New York. He is the
author of the New York Times Bestselling book "How Would a Patriot Act?,"
a critique of the Bush administration's use of executive power, released
in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

[More proof that "hope" was entirely misplaced; it was our weakness not
our strength; time to move beyond Obama and the corporate Congress to
citizen organization and action.]


   - David Shove             shove001 [at]
   rhymes with clove         Progressive Calendar
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