Remember this (from Glenn Greenwald, who, I have been reliably informed by some of you, never has a kind word for Obama nor has ever defended him):
Last Thursday, when the Dow was dropping to roughly 8,600, various right-wing polemicists claimed that the stock market was plummeting because investors were realizing that Obama would likely win and his policies would be bad for the economy. The Right’s leading intellectual historian, Jonah Goldberg, wrote a post he entitled “The Obama Discount,” and printed this email:
When are people going to start talking about the REAL reason the markets are down – Obama up in polls. If I was McCain, I’d start telling people, “If you want to lose more money, vote Obama.”
Though Jonah said he had “no idea whatsoever if there’s merit to this, and if there is how much merit,” he nonetheless noted that he was receiving “lots of email like this” — presumably from other geniuses who write emails sharing their economic theories with Jonah Goldberg.
Oddly enough, the Goldberg Theorem never gets trotted out for stuff like this:
Stocks post best first quarter gains in more than a decade
The stock market is taking some ages-old advice to heart: everything in moderation.
Stocks on Wednesday ended a first quarter that many investors and analysts would describe as healthy. The Standard & Poor’s 500 index is up 4.9% by amassing a string of steady gains that were far from the supersized jumps seen in 2009.
The Dow Jones industrials are up 4.1%, but with unremarkable gains of 50 points here and 15 there. They’ve had few of the triple-digit swings that used to be commonplace.
The market’s relative tranquility has made many analysts upbeat about the chances that its gains will hold. They say investors now have realistic not overoptimistic expectations. And the market has gotten used to the idea of a bumpy economic recovery, including the continuing struggles of the housing market. But analysts warn, for stocks to extend their January-March gains, investors will need to see employers hiring again.
Remember a month after the inauguration and Malkin when was blaming the Bush recession’s market collapse on Obama? Good times. Good times.
Joseph Nobles
That Greenwald is cracking.
WereBear
I thought this would be good news for John McCain.
You mean, it’s not?
demkat620
But John, this is central to his point!
NobodySpecial
Economists who do it for a living don’t understand economics. How the hell do you expect brain dead puke spigots like Goldberg to?
Cat Lady
Yeah, but CRE is cratering in all directions. We’re not out of the woods yet.
Cris
Economics trends generally follow very long cycles. From what I understand, economic upturns usually have their roots in the previous Republican administration, regardless of how long ago that was.
David in NY
John is on a roll!
Steve
The left has its share of Goldbergs, although none of them seem to get nationally syndicated column space. When health care stocks are up, it’s proof that Congress is passing a corporate giveaway! When health care stocks are down, crickets.
Reality is that the market very rarely responds to political developments in a major way. Institutional investors are not out there parsing the latest press release from Bart Stupak’s office to figure out whether they should buy or sell. To put it more succinctly: short-term market fluctuations are to politics what today’s weather is to climate change.
arguingwithsignposts
I for one wish the entire media establishment would spend less time reporting on the Casino Known As Wall Street, and more time focused on numbers that actually mean something to the real economy.
Mark S.
My god that needs to be put on Goldberg’s gravestone.
Violet
Clearly we are in the midst of the Bush bull market.
cleek
The Rules
freelancer
@Cris:
Someone at the Ministry of Truth is looking for a promotion.
General Egali Tarian Stuck
Since you brought up your bud GG, how about doing a post on this
Obama did not try to defend the governments claim when the rubber met the road. But to GG it was a crushing defeat for the Bush like Obama. So please spare us the GG love for Obama drivel. Glenn Greenwald is a lying hack, that is how I lighten up Francis.
MikeJ
How many colours does it take to make a stock chart plotted against Obama popularity?
Sorry, that’s the conjecture.
El Cid
Someone with a long memory, Robert Parry, reminds us that Republicans and their propaganda machine always, always systematically attack any Democratic President as illegitimate, including actions which evidence supports as actually treasonous interference with U.S. foreign policy. And they wouldn’t do it if it didn’t work.
media browski
Glenn got through a whole post without referring to the Obot conspirators who are trying to undermine good progressives like Jane? I’m impressed. But not convinced.
Anyway, the point is that GG has a huge unreliable narrator problem, and I don’t have the patience to figure out when he’s obfuscating and when he isn’t. I can’t even trust his take downs of conservatives. I have limited time and energy to put into reading blogs, so I have to go with the ones who are reliable.
max hats
Even 2 years out of office, the Bush economy is back on its feet! Obama’s efforts notwithstanding.
cleek
@media browski:
dingding
Jordan G.
#13 – the government (meaning attorneys employed by the justice department) did invoke the state secrets privilege. And they have invoked the privilege since Obama took office just like Bush invoked it.
The executive doesn’t want to cede power back that it has gained over the years. It doesn’t make sense to ask them to do that. Lawmakers need to step in and force them to do so. Now, of course, the President did mention during the campaign (more than once) that he wanted to limit the state secrets privilege and thought it was often used inappropriately….
lamh31
Tony Perkins urges conservatives to stop giving money to RNC
DougL (frmrly: Conservatively Liberal)
I am not in the ‘GG hates Obama’ camp but rather the ‘GG has a bad habit of taking a subject that has something to it and blowing it up to ridiculous proportions by making connections that are at best nebulous’ camp (acronym that!). Then he gets pissed when someone calls him on his bullshit and doubles down on it. GG runs on topics and not a general agenda, so to say. That is something that I like about him and that is why, like others, I get sick of his making something out of nothing when talking about legitimate subjects.
On problem for me is that now that I have seen his parsing of words about cash and FDL I am going to have to wonder how much other stuff he is parsing in his writing just to ‘make the story’. That was a stupid move on his part and his conduct when criticized has been even less appealing.
I say good on him here regarding his calling out Goldberg on his bullshit. This is not an Obot agreeing solely because GG said something nice about Obama but rather common sense from looking at exactly what happened. He’s right just like he is wrong at times like the rest of us, and it would be nice to see GG acknowledge that even he does screws up at times.
That and see him drop the ad-homs since it does nothing to promote his ’causes’. That would be nice.
Joshua Norton
Financiers who know better say the market is always up when a Dem is in the WH. It has something to do with people trusting them to monitor the market and not letting their Repiggie country club buddies steal everything that isn’t nailed down. (cough)Like Bush did.(cough)
kommrade reproductive vigor
The same could be said of the sperm that conceived Doughblob Loadedhosen.
General Egali Tarian Stuck
@Jordan G.: Presidents have been invoking the state secrets privilege since the 50’s. Obama, I think has used it once. You are offering up the GG conflation that since Bush used it excessively and to cover up crimes and now Obama uses it, then of course he is like Bush, with no evidence he is misusing it to cover up crimes. And you neglect to point out that Obama supports the legislation that is pending in congress to set limits on it’s use and ban misuse.
Zifnab
@lamh31: and start giving money to Tony Perkins.
You forgot that last part.
eemom
um, if I am reading this correctly, this is something Glenn said before Obama even won the election. You know, back when he himself was a starry-eyed Obot……..passionately chanting his campaign slogan, “Bad as Obama sucks, McCain sucks more.”
Svensker
Shouldn’t we be talking about what a dipwad Jonah Goldberg is, rather than doing the bash GG thing again?
Too soon?
cat48
John, an example of GG’s hatred for Obama can be proven now. Joe Scarborough quotes him for shock value and to prove negative thoughts he has, “Hey, GG, a very liberal person, said this so don’t get mad at me!” GG has become a Republican tool.
eemom
@General Egali Tarian Stuck:
“So please spare us the GG love for Obama drivel. Glenn Greenwald is a lying hack, that is how I lighten up Francis.”
Bless yer heart, good General. I would never dare speak thusly.
eemom
@General Egali Tarian Stuck:
“So please spare us the GG love for Obama drivel. Glenn Greenwald is a lying hack, that is how I lighten up Francis.”
Bless yer heart, good General. I would never dare speak thusly.
scav
@General Egali Tarian Stuck: I’m beginning to wonder if they’re doing a softly softly back-stepping out of the whole mess sorta like the DADT issue. Thought of that when I read the last paragraphs of the NYT post on this. Strategic retreat, letting the military taking the overt action, letting the courts take the overt actions. I’ll continue to hope. I still would like to drop kick the phone companies though.
Mark S.
@lamh31:
I hope this part of the story is true:
Tonal Crow
The New Goldberg Theorem is that the markets are up because they’re anticipating that Caribou Batty will win the Presidency in 2012.
General Egali Tarian Stuck
@eemom:
Just triangulating those who accuse me of being a Cole lackey. Good politics.
WereBear
@Svensker: I’m always up for calling a dipwad, a dipwad.
Goldberg is so lazy I understand he throws out speculation in his “column” and asks his readers to check on things and let him know. Because research in the Age of Search Engines is too hard.
He makes a cowflop look like the second coming of Sammy Davis Jr.
El Cid
It’s so sad that anyone has to discuss what the lazy, nepotized dipshit that is Jo’berg Loadpants has to say that if it would make Goldbutt disappear I’d read the anti-GG/JH obsessives all day long.
Kevin Phillips Bong
@Cris: Larf. Nicely done.
El Cid
@WereBear: This is central to his point. Also, the Holocaust could never have happened in Italy because Italy is not Germany. And fascism is both trying to get beyond politics and also trying to make politics out of everything. And so forth.
Sly
You think that Goldberg quote is funny, here’s his prediction for what early 2010 would look like after Obama won:
Ailuridae
My thinking on Jonah Goldberg can best be summarized by an excellent Robert Farley anecdote about William and Irving Kristol.
I remember back in the late ’90s when Ira Katznelson, an eminent political scientist at Columbia, came to deliver a guest lecture to an economic philosophy class I was taking. It was a great lecture, made more so by the fact that the class was only about ten or twelve students and we got got ask all kinds of questions and got a lot of great, provocative answers. Anyhow, Prof. Katznelson described a lunch he had with Irving Kristol back either during the first Bush administration. The talk turned to William Kristol, then Dan Quayle’s chief of staff, and how he got his start in politics. Irving recalled how he talked to his friend Harvey Mansfield at Harvard, who secured William a place there as both an undergrad and graduate student; how he talked to Pat Moynihan, then Nixon’s domestic policy adviser, and got William an internship at The White House; how he talked to friends at the RNC and secured a job for William after he got his Harvard Ph.D.; and how he arranged with still more friends for William to teach at UPenn and the Kennedy School of Government. With that, Prof. Katznelson recalled, he then asked Irving what he thought of affirmative action. “I oppose it”, Irving replied. “It subverts meritocracy.”
When you’ve never earned anything in your life and never had to compete to make a living its very easy to be blissfully ignorant.
Tonal Crow
@Sly:
Fixed.
Sly
@Mark S.:
The RNC (and the NRCC/NRSC) have been bleeding money for a while. Steele isn’t really the cause, he’s just a convenient scapegoat for the big GOP donors who have taken their toys and gone home. Right now the biggest donor base for the GOP is probably relatively young people in the finance industry, like that “Young Eagles” group that is caught up in the Faux-Lesbian-Bondage thing.
Which is why we’ve seen no collaboration on Financial Regulatory Reform, and why we’ll continue to not see any.
Bob L
hmm
So we need our corporate masters to explain this; is this the Bush Recovery or Normal market cycles, out of the governments control? One think I am sure we are going to find out it Financial Reform is out of the question (wouldn’t want to derail the recover) and we need the Republicans to take control of Congress to stop Obama.
PTirebiter
I’ve always respected GG’s opinions and thought his Obama push-back was largely appropriate and constructive. Maybe that’s why I was so surprised by his response to DougJ yesterday. Now it will be in the back of my mind whenever I read his stuff.
El Cid
@Tonal Crow: As far as I can tell, my more conservative colleagues and neighbors know that inflation has gone through the roof, no matter what them librul pointy-hed ‘facks’ claim.
Citizen Alan
Yes, I suppose it would be swell if Greenwald would just shut up about the lawlessness of the Bush regime and Obama’s complicity in covering it all up. That way, when the next Republican President comes along and does everything Bush did and 10x worse secure in the knowledge that s/he will suffer no accountability for it, we can all congratulate ourselves on the fact that despite all evidence to the contrary, our Democratic leaders are not moral cowards.
NobodySpecial
Driving that narrative, I see.
Sly
@El Cid:
I bet they’re also very concerned about the national debt, too, even though one of the quickest way to get rid of debt is inflation “going through the roof.”
The 70s were a blight on the world for various reasons. The persistent notion that inflation is the worst possible thing that can ever happen ever ever is the biggest one.
rootless-e
@Ailuridae: wow.
sparky
@General Egali Tarian Stuck:
that the state secrets evidence privilege has been around since the 1950s is not an argument in its favor.
the number of times the Obama administration invokes it depends upon the number of actions where it is relevant so that argument is also worthless/irrelevant.
did you actually read the decision? the Obama DOJ lost because they didn’t even bother to present evidence–instead they simply asserted the privilege trumps all.
from the opinion @ p. 27:
—
Op. @ 34:
yeah, i guess that’s not really defending. and yeah that doesn’t sound anything like a Bush kind of argument.
rootless-e
@Ailuridae: is there an online source for that?
RSR
In terms of ‘discount’ it would have been a good time to buy. Not what he meant though…
General Egali Tarian Stuck
@Citizen Alan: I don’t want GG to shut up for a second. I want him to start reporting facts, all of them, without a personal agenda.
Will
I’ll accept your point, if Glenn will just stop accusing everyone who disagrees with him on anything of being a “cultist”, who worships “Dear Leader”.
El Cid
@Sly: They all completely know in their heart that the biggest problem we now and have ever faced is the deficit and the debt, since all of these good American mortgage holders and car payment makers and credit card owers who work for businesses which must take out short term loans to meet payroll and long term loans to buy stock and equipment know that unlike the socialist tyrannical U.S. government goin’ broke, they have to balance their budget every month, just like cartoon ghost Ben Franklin says when he smiles at them just behind their shoulder as they say good night to their precious children, who will one day be taking out college loans so as to invest in their futures.
rootless-e
@rootless-e: found one
http://www.lawyersgunsmoneyblog.com/2008/10/the-sub-prime-kristol-meltdown
El Cid
@Will:
If you think debates and unearned monikers are prominent on BJ, just try to make it through the 1,000 page comments list on GG’s blog, especially if he should write anything about Israel.
WereBear
You know, if the Obama administration wanted to curtail the state secrets use, wouldn’t this be a way to do it?
Maybe there’s more than one way to skin a goat fucker?
General Egali Tarian Stuck
@sparky
The courts, and Supremes, set that standard. Not politicians. It has roots that go back to the early days of the republic. I think there needs to by legal guidelines codified and that is pending in congress.
I have no idea what this means
And it would have been easy for the DOJ to present evidence that valuable secrets might be compromised, and I guarantee you that Judge Walker would have have given the government a favorable ruling if they had tried. They always do in these cases. This way the government keeps it’s right to invoke the SS privilege in the future, and also give the plaintiffs some relief in this particular case. And most importantly not give the impression that Obama caved due to political pressure from the left.
And I disagree that the SS has no valid use. I don’t want muckraking wankers to get to look at State Secrets every time they get a bug up their ass that something might be done illegally. They need to have a good prima facie case.
Comrade Kevin
Speaking of Goldberg, more at LGM.
MikeJ
@Comrade Kevin: Has LGM been even slower than usual since the switch? 20 second load times for you too?
NobodySpecial
Remember what’s important, kiddies.
ThatLeftTurnInABQ
@Sly:
While in very general terms this is true, it doesn’t apply to the US national debt at the present time. One of the guest bloggers at NakedCapitalism had a post a week or so ago debunking this myth (sorry no time to google it). The basic problem is that too much of our debt is in short term issues, and so if inflation gets rolling we won’t be able to roll over our debt slowly enough to let inflation dig us out of that hole – instead it will be a Red Queen’s Race against the bond market and one we can’t win with our current debt structure.
General Egali Tarian Stuck
@General Egali Tarian Stuck:
Or, that Obama’s DOJ claiming SS at face value is useless and moot in the absence of willingness to present evidence in Chamber to justify it. I say nicely done Obama.
But I are an Obot, sosume.
General Egali Tarian Stuck
@NobodySpecial: Weak tea dude. really weak tea.
Will
@El Cid:
I’ve tried. It takes about a week, and all the comments appear on about 50+ different pages. It’s damn annoying…
NobodySpecial
@General Egali Tarian Stuck: What can I say? I work with what you give me. But keep driving that narrative, dude.
General Egali Tarian Stuck
@NobodySpecial:
And what narrative would that be? I gave you facts and a cogent argument and you don’t like it, so you pout and make smartass inane remarks with no facts or counter argument.
Mark S.
@General Egali Tarian Stuck:
Maybe this is 11-D chess, maybe not. All I know is that the DOJ lawyers looked like a bunch of dildos (“Wait, maybe there was a search warrant!”). Whether Obama had anything to do with this strategy is highly doubtful.
NobodySpecial
@General Egali Tarian Stuck: Ooo. Mirrors no worky for you, either, huh?
General Egali Tarian Stuck
@Mark S.: Do you really think that choosing to not present evidence to back up Bush’s SS claim was anything but a conscious and willful decision by the DOJ at the highest levels in a politically charged and high visibility case like this? ergo, I think it is highly unlikely the WH wasn’t involved.
Tonal Crow
@General Egali Tarian Stuck:
In recent years the State Secrets Privilege (which, BTW, is a judicial creation) has been construed to extend way beyond that. With only a few exceptions, it has been converted from a way to bar specific evidence from a case into a way to dismiss entire cases on the claim that the very subject of the case is a State Secret. It has become a way for the executive to violate federal law, treaties, and even the Constitution — and get away with it. Thus, for example, a district court dismissed a torture victim’s case on the ground that the entire case was a State Secret. http://www.aclu.org/national-security/mohamed-et-al-v-jeppesen-dataplan-inc . The 9th Circuit overturned the dismissal, but Obama’s Justice Dept. petitioned for rehearing, which the court granted. It’s still considering the case.
Be careful what you sign on to.
Sly
@ThatLeftTurnInABQ:
We have about $5 trillion in short term debt that, I think, would have to be refinanced sometime between now and 2015. True, it wouldn’t be easy to keep up with interest rate increases. But considering that a hyperinflation policy has a real chance of crippling the bond market, because so much of our public/private debt is external and foreign investors would pull out, I dont think it would be as difficult to accomplish as some would suggest. Of course, a bond market crash in the United States would cause a global Depression, but hey… we reduced the debt!
This is all by way of saying that I think, generally speaking, all the Nervous Nellydom about debt and inflation is a might bit foolish. If anything, the Fed has been too cautious in its inflation expectations.
Zach
It is really unfair to Larry Kudlow to call this the Goldberg theorem. Kudlow posted an image showing the market’s decline during the first few days of the Democratic Convention (and, of course, didn’t post when it rebounded in the latter days of the convention).
General Egali Tarian Stuck
@Tonal Crow: I am just signing onto this case today that clearly shows Obama, and or his DOJ playing kick the case down the road and in the end rope a doping it to not go full metal to defend it, and in fact throwing the case intentionally.
The rest of Bush’s old cases will have to be evaluated as they proceed, and we shall see on them.
Maude
@General Egali Tarian Stuck:
THIS.
Original Lee
Tangentially related to the OP.
The tyranny of facts, it’s getting me down.
SFAW
John –
I think it would have been good fun if Pantload had made yet-another $1000 bet with you, just as he did on Iraq, but this time re: the stock market.
Did he ever pay off his debt?
SDF
I’ve also been missing all those uplifting statements from Kudlow he used to post on the Corner every time the market was up praising Bush’s astuteness and appreciation of capitalism or some such nonsense. I guess the good news is he’s not posting anything.
different church-lady
Mark my words: “Bush’s policies have finally fixed Obama’s recession!”
I’ve never found conservatives to be good with the temporal thing.
Chuck Butcher
@General Egali Tarian Stuck:
That is horseshit, the claim was made. You may misunderstand the thrust of the claim which is that because some secret exists the entire issue is secret. It is not a matter of keeping some super duper secret drawing out of the bad guys hands – it is that the government merely needs to assert “government secrets.” The practice is not to present evidence, that is the entire point of the assertion.
That has nothing to do with Obama=Bush, that claim is dangerous as hell – whoever makes it. The original case was a suit over a plane crash, gone because certain drawings couldn’t be released as secrets. Those drawings were not even in issue, their existance was sufficient.
El Cid
@different church-lady:
The first attempt to blow up the WTC occurred 1 month into Clinton’s Presidency, so Clinton was responsible.
The 9/11 attacks took place 8 months into Bush Jr’s Presidency, so Clinton was responsible.
Mnemosyne
@different church-lady:
I call it Conservative Temporal Disorder (CTD). If something happened once, it will always happen that way and any evidence that there’s been a change since then can be dismissed out of hand.
Laertes
When the DOJ mismanages a case really badly, and thereby gets a result that will please their political masters, it’s not crazy to suspect that they blew it on purpose.
SFAW
Nor the frontal, parietal, or occipital, either. It’s tough to “be good with” something you don’t have.
Yeah, so? What’s yer point, commie? Next you’ll be trying to claim that it wasn’t W’s tax cuts which retroactively created those 22,000,000 jobs during Clinton’s eight-year usurpation. You DFHs will try anything.
General Egali Tarian Stuck
@Chuck Butcher: You need to read the case Butcher before shooting your mouth off.
The judge made a ruling that the plaintiffs had a prima facie case without the government releasing classified info requested. The judge gave the government the opportunity to provide evidence in Chamber, to provide evidence that national security would be harmed if the case was tried.
The Obama government declined to make that case and by default, the judge granted the summary judgment requested by the plaintiffs. Hell, even the poster at FDL ceded that the government conceded the case.
Now go soak your head you cranky old fart.
Chuck Butcher
@Laertes:
Judas priest, under BushCo the DOJ accidentally released to the plaintiffs a doc showing the wiretapping. Plaintiffs tried to use it, were ordered to turn it (and any copies, etc) back over to the govt and not reference it. BO DOJ turned it over to the judge – he cried foul.
If there is a break, it is that the DOJ showed it to the judge.
Chuck Butcher
@General Egali Tarian Stuck:
Maybe you better go back and read it and the claim. The DOJ showed the judge the doc to prove the case held a secret and couldn’t be heard. That is what the claim is. It has no bearing whether a secret document is required as evidence. That SCOTUS decision is one of the real ass suckers of the century.
LD50
If I recall correctly, someone on Fox made reference to ‘the Obama Recession’ before Obama was even inaugurated.
General Egali Tarian Stuck
@Chuck Butcher: I provided links and sources to back up what I said, even from the dread FDL. If you don’t want to follow them, then provide some of your own.
different church-lady
@El Cid:
Except that those never happened — no domestic terrorist attacks under Bush, remember?
El Cid
@different church-lady:
There was no Bush II Presidency. Clinton was in charge while the Newt Gingrich Congress fixed the economy, and then he let 9/11 happen. Then George W. Bush was brought in to be Commander Guy Decider for a period of months to keep us safe by stopping Saddam Hussein from invading us. Then Nancy Pelosi and Barney Frank took over and made the banks give all the homes to poor black people and ACORN, and this broke the economy. Obama and ACORN stole the election and then he gave all the money to the banks and after that he killed the Constitution by making soshullist health care.
Have you no knowledge of recent history?
sparky
@General Egali Tarian Stuck: they did not throw the case intentionally. that is an inference on your part, not a fact. you can construct a conclusion any way you wish, but i think it is highly implausible, given the arguments made in the case. they are identical to the arguments the Bush administration made.
edit: you said this upthread–The Obama government declined to make that case and by default, the judge granted the summary judgment requested by the plaintiffs.
that’s not accurate. the DOJ argued something else–that SS trumped FISA. why? well, just because. that is NOT defaulting. and if you read the opinion, you will see that the plaintiffs were even given top secret clearances and the DOJ still refused to cooperate. this is the Executive saying “we are above the law” plain and simple.
sparky
@El Cid: oh. i thought ACORN and jimmy carter broke the economy.
personally, i’m waiting for the GOP to start calling Nixon a commie.
General Egali Tarian Stuck
@sparky: You are wrong.
The Obama doj did not argue the same as Bush. They did not argue that it was lawful what Bush did, as Bush argued. They declined to argue the merits of the case. They simply invoked SS privilege and that is all. They did not present evidence when the judge ruled the plaintiffs had standing and a prima facie case that for it to be tried would have revealed state secrets, and if they had, even a little, the judge would likely have favored them.
And when the plaintiffs filed for summary judgment the DOJ did nothing to argue against it. And therefore by default, the judge granted the motion for summary judgment. The legal eagles here can weigh in, but it is my experience working with lawyers that these things are often pre orchestrated for this result to happen.
The Doj wins by preserving it’s ability to use SS in future cases and the plaintiffs get relief for this particular case.
Christ, you never give up on the Obamafail shit.
read some analysis by legal peeps. here and at memerandum.
General Egali Tarian Stuck
@General Egali Tarian Stuck: @sparky:
And yes, it is speculation on my part because the O DOJ is not going to admit they threw a federal case. But it is speculation based on some pretty good indication that that is what happened. The only other alternative is that they are too incompetent to practice law, especially in the DOJ.
sparky
@General Egali Tarian Stuck:
ok, you think i’m wrong. let’s see, shall we?
edit: after looking back at what i wrote, i see i wrote something that was unclear. by using the word identical i mistakenly gave the impression that i thought the DOJ was making literally the same argument. i did not mean that and should not have used that word. i should have been more careful; can’t blame someone for thinking that’s what i meant. i did not mean to imply that. what i MEANT to say was that they argued that the state secrets privilege trumped FISA, and that this is the same kind of argument the Bush administration made because it asserts a decision by the Executive trumps a statute.
agreed. nor did i claim otherwise. you are arguing with a strawman. or perhaps Kerr’s take on what the NYT said. or somebody else, but not me.
two points: first, they made a legal argument about the merits of the case. second, invoking state secrets is an absolute bar to litigation. if it is invoked and granted, there’s nowhere to go. so saying “that is all” seriously misconstrues the effect of that invocation.
again, agreed. the DOJ made an argument that they didn’t need to present evidence. that is NOT the same thing as not making a case. the government made a legal argument that it didn’t matter what the facts were.
not sure what you mean here
that’s your opinion and you are entitled to it.
that’s not true.
Opinion @ 21:
Defendants cross-move for summary judgment on
plaintiffs’ FISA claim and “any remaining claim,” arguing that:
(1) the Ninth Circuit’s mandate in this case “forecloses”
plaintiffs’ motion; (2) plaintiffs’ evidence is too conjectural or
circumstantial to establish that plaintiffs are “aggrieved persons”
for FISA purposes; and (3) all other potentially relevant evidence
—— including whether the government possessed a FISA warrant
authorizing surveillance of plaintiffs —— is barred from disclosure
by operation of the SSP.
i agree that is sometimes the case, though i do not think that is what occurred here. if the above snippet does not provide a sufficient basis for my conclusion to the contrary then perhaps the following snips of procedural history will.
The order directed the government to begin
processing security clearances for members of plaintiffs’ litigation
team so that they would be able to read and respond to sealed
portions of the court’s future orders and, if necessary, some
portion of defendants’ classified filings.
The court also directed defendants to review their classified submissions to date and to determine whether the Sealed
Document and/or any of defendants’ classified submissions could be
declassified. Upon completion of this review, defendants informed
the court that nothing they had filed under seal during the three
years in which the case had by then been pending could be
declassified.
What followed were several months of which the defining
feature was defendants’ refusal to cooperate with the court’s orders punctuated by their unsuccessful attempts to obtain untimely
appellate review….
In response to the court’s directive … defendants presented three similar-sounding alternatives, all of which appeared geared toward obtaining a stay of this court’s proceedings pending review by the court of appeals….
Next, after the United States completed suitability
determinations for two of plaintiffs’ attorneys and found them
suitable for top secret/secure compartmented information (“TS/SCI”)
clearances, government officials … refused to cooperate with the court’s orders, asserting that plaintiffs’ attorneys did not
“need to know” the information that the court had determined
plaintiffs attorneys would need in order to participate in the
litigation.
Op. 16-18, citations and text omitted. incidentally i love the Kafka-esque assertion by the DOJ that the plaintiffs didn’t need to know what they needed to know.
i don’t have the time or the inclination to argue about everything but i care about people misrepresenting my arguments, and i care about people misrepresenting factual matters for whatever reason.
sparky
addendum:
a. sorry about the formatting above–dunno what happened but i think i lost track of it.
b. Stuck–in case it wasn’t clear–you were right to call me out on the “identical”. i should not have put it that way. i don’t agree with you much but i do thank you for helping to keep me from being sloppy.
/that’s all for me for today, whew. :P
General Egali Tarian Stuck
I did neither. My points are simple and clear. Obama did invoke SS trumping fisa. And that is all they did. And when the judge ruled the plaintiffs had a prima facie case despite classified information being with held and ruled there was standing and the case could be tried. The judge per procedure gave the government the opportunity in camera to argue a last time that trying the case would reveal national secrets, the obama doj declined to present that case, when they could have easily, and fed judges have a long history of giving leeway to the government when they make such arguments.
IOW;s THE ONLY thing the obama doj did in this case was to continue to argue the base issue for them that SS trumps fisa or any other law. I think they had to do this to preserve precedent for using it in the future. But they did nothing else and dropped Bush;s argument that what was done was legal, and did not contest the plaintiffs motion for summary judgment.
That is about as clear a case showing they conceded the case as they could have done, and still preserve SS invocation for the future.
I have repeated these points several times now and will no more, and Marcy Wheeler agrees with me, if you bothered to read her thoughts on this.
sparky
@General Egali Tarian Stuck:
2 quick responses:
1. i find it more than a little amusing that you of all people cite FDL as authoritative when it suits your purposes.
2. you say
when you say the only thing that gives the misleading notion that that is somehow little. as it is a complete and total block to ANY review of ANY action by the executive i have no idea why you think that’s a small point. what it means is that NO ONE trumps the Executive, which is a pretty damn large point, and in that sense similar to the Bush regime. if you want to claim that the Obama administration saying it is above the law (which is what the assertion here was) is a good thing or consistent with the Constitution, well, be my guest.
(the privilege doesn’t get stale from not being used so the preservation notion is just not relevant.)
i agree that they did not argue that the wiretapping program was legal. you have chosen to infer that this is some kind of concession on the part of the DOJ; i think it is more likely that they chose not to argue it as a strategic matter: why risk it? as (AFAIK) neither one of us was there at the meetings to decide which way to go, it’s just conjecture. the difference is that your conjecture is framed in a way to align with your opinion of Obama. mine doesn’t say anything about Obama one way or the other but is consistent with their other litigation positions, which all argue for maximum Executive authority free from any oversight.
finally as i said above i don’t agree with the characterization that the DOJ did not contest the plaintiffs’ case. they did, and when that didn’t work, they stonewalled, and when that did not work, they simply made a legal argument. for appeal purposes there is a huge difference between default judgments and a cross motion for summary judgment, as here. they are not the same thing and should not be conflated. what the DOJ did, really, is refuse to play by the rules. my guess as to why is below, but that’s just a guess. the point here is that the DOJ did refuse to play.
3. i did take you up on your suggestion and read marcy wheeler. i understand her argument (as to appeal) but don’t agree with her for two reasons. first, she is not an appellate lawyer. normally this would not matter but DOJ decisions about whether to appeal in matters like this take into account all kinds of input from DOJ and appellate specialists like the Solicitor General (in addition to the WH). that doesn’t mean that she is wrong, just that i think she doesn’t know enough of the ins and outs here. second, her argument rests on the notion that there will not be any other cases like this, but that’s not the issue from the DOJ’s perspective. i don’t think the DOJ wants this to stand as a precedent. why? because it states, quite clearly, that THIS evidentiary privilege will not trump a statute’s clear language, and that holding is inconsistent with every other position the Obama DOJ has taken in national security litigation.
4. FWIW my thinking is that the DOJ will stall until the WH gets legislation introduced in Congress to overturn the result of this case and then it can be tossed on mootness (e.g., a change in the law) at the Circuit. we shall see. look for the relevant change to be introduced by some blue dog D.
sparky
@sparky: some nitwit can’t count, apparently. duh. :P