The first two days of Netroots Nation have already produced a bumper crop of highlights and sound bite moments.  As was widely reported, the DLC's Harold Ford was showered with cries of "Why?" and "Who?" when he told the lunchtime audience, "I have great, great respect and admiration for my former colleagues" at Fox News.  And former Alabama Governor Don Siegelman challenged John McCain to "call on Rove to go and obey the law and to show up before the Judiciary Committee."

But away from the glare of the keynotes, the Netroots Nation break-out sessions and panels produced their own fair share of memorable moments and quotable quips.

I was just reading a review by John Cassidy of the book Nudge: Improving Decisions About Health, Wealth, and Happiness, by Richard Thaler and Cass Sunstein. (New York Review, June 12)

One reason the book matters is that its authors are on a wavelength with Barack Obama and "behavioral economics" – a bridge between the extremes of Keynesian big-government economics (FDR, et al) and doctrinaire capitalism, in which the free market settles all questions and solves all problems. This battle has dominated economic policy for most of the past hundred years.

On May 8, 2008, Barack Obama commented that John McCain's spurious pairing of Obama and Hamas indicated that McCain had "lost his bearings."

Here is what Obama actually said to Wolf Blitzer:

"This is offensive, and I think it's disappointing," Obama told Blitzer, when asked his thoughts about McCain’s comments that the terrorist organization Hamas wants Obama to be president. "Because John McCain always says ‘I am not going to run that kind of politics,’ and to engage in that kind of smear is unfortunate, particularly because my policy toward Hamas has been no different than his.

"I’ve said it’s a terrorist organization and we should not negotiate with them unless they recognize Israel, renounce violence, and unless they are willing to abide by previous accords between the Palestinians and the Israelis. So for him to toss out comments like that I think is an example of him losing his bearings as he pursues this nomination. We don’t need name calling in this debate."

NOTE: I posted this yesterday, but had the bad timing to do so just as the Edwards story broke.  It was pushed off the page in less than 15 minutes with only 4 comments.  Since I worked for hours on it the other night, please forgive me for posting it again today.  I think this is valuable.  I hope you do too.  

Now that we are down to the wire, I've started to receive requests from some of my less enagaged friends for information about Barack Obama.  Chances are you know someone who is just starting to make their decision.  For this reason, it struck me that it might be useful to compile some of the best articles and Dkos diaries about Barack Obama.

Hopefully some or all of this will be useful to you.  I invite you to add any constructive additions in the comments.

...but before we do - a word about the Obamathon:

This fundraiser was conceived and created entirely by Populista, one of our youngest and brightest kossacks.  Please consider making a donation in these crucial days before Super Duper Tuesday.

Now that we are down to the wire, I've started to receive requests from some of my less enagaged friends for information about Barack Obama.  Chances are you know someone who is just starting to make their decision.  For this reason, it struck me that it might be useful to compile some of the best articles and Dkos diaries about Barack Obama.

Hopefully some or all of this will be useful to you.  I invite you to add any constructive additions in the comments.

...but before we do - a word about the Obamathon:

This fundraiser was conceived and created entirely by Populista, one of our youngest and brightest kossacks.  Please consider making a donation in these crucial days before Super Duper Tuesday.

At a time when our constitution is in such crisis, the symptoms of which can be seen in every aspect of our politics and our government, there is one quote that sticks out to me above all others:

"I don't know if we have had a president that knows as much about the founding document as he does." - Professor Cass Sunstein, University of Chicago

http://www.suntimes.com/...

Kind of looks like the thinking man to me.

More thoughts below...

Cass Sunstein is back, this time with a new book claiming that the Internet is bad for democracy because it allows like minded people to hang out with other like minded people, and thus they all become partisan zombies and thats bad, because, umm, because people aren't supposed to have strong positions on things?  The meta-argument kinda loses me there, as you can probably tell.  I haven't read the book so I cannot speak to its in depth argument, but Mr. Sunstein is blogging at TMP Cafe this week and his first post is not a particularly impressive one.

Questions that Democratic Senators are never going to ask Michael Mukasey:

1. Do you believe in the unitary executive?

2. If so, how do you square that principle with your assurances that the Justice Dept under your leadership will act independently of political influence by the White House?

3. If not, will you attempt to rein in reliance on the principle of the unitary executive in OLC memos and other official administration pronouncements? Would that include signing statements?

http://news.myspace.com/...

Cross-posted from The Tortellini:

If you listen to tort reform debates long enough, you'll hear a common refrain about the tort system's "unpredictability" and "irrational jurors" who can't be trusted to put a dollar figure on corporate or medical wrongdoing. Sober legal minds like the University of Chicago's Cass Sunstein and patrician Common Good founder Philip Howard argue that decisions about the size of punitive or noneconomic damages ought to be made by experts, not average Americans on juries, maybe even using some sort of fixed schedule, to bring more order and predictability to the system.

This all sounds so reasonable and rational, until you read stories like those published in the Charleston Gazette last month about coal mine safety.

Apparently under the impression that he can issue reinterpretations of Supreme Court rulings just like he can signing statements for legislation, Bush gives us his understanding of Hamdan.

In his most detailed comments to date on the Supreme Court's rejection of his decision to put detainees on trial before military commissions, President Bush said Friday that the court had tacitly approved his use of the detention center at Guantánamo Bay, Cuba.

"It didn't say we couldn't have done -- couldn't have made that decision, see?" Mr. Bush said at a news conference in Chicago. "They were silent on whether or not Guantánamo -- whether or not we should have used Guantánamo. In other words, they accepted the use of Guantánamo, the decision I made."

. . . The question of whether Mr. Bush had properly used Guantánamo Bay to house detainees was not at issue in the case. At issue was whether the president could unilaterally establish military commissions with rights different from those allowed at a court-martial to try detainees for war crimes.

Amazing. The basic premise in law--as this non-lawyer understands it--is that cases decide what they decide and no more. In this case, the Court did not address the issue of detentions at Guantánamo at all. Just as the Court did not address warrantless domestic surveillance even though the logic of the case clearly indicates that the Bush Administration's justifications  (particularly, the argument that the AUMF authorized it) were tacitly rejected.

Even Cass Sunstein, who defended the Administration argument on warrantless domestic surveillance, admits it. He writes at Jack Balkin 's blog:

After Hamdan, the defense of the NSA foreign surveillance program is much more difficult. Justice Thomas took a route very similar to that sketched by the most plausible arguments for the NSA program -- and his view was squarely rejected by a majority. The Court refused to construe the AUMF as overriding the Uniform Code of Military Justice -- and it would be easy to say that the AUMF has the same relationship to FISA as to the UCMJ (that is, it leaves it 100% intact). The Court gave little attention to the claim that the President has full authority to create military tribunals in the face of congressional restrictions on that power -- and it would be easy to say the same thing for foreign surveillance. (The President does have historical support for his surveillance claim, but he also had such support for creating military tribunals. Maybe the historical support is stronger for surveillance -- but that is not clear.)

Perhaps most important, the Hamdan Court seemed to demand clear congressional support for the presidential action at issue, and the President does not have clear congressional support for foreign surveillance. (In case it's of any interest, I defend a general requirement of clear congressional authorization, at least when constitutionally sensitive rights are at issue, in a paper in the 2004 Supreme Court Review.)

The upshot is that after Hamdan, the NSA surveillance program, while still not entirely indefensible, seems to be on very shaky ground, and it would not be easy to argue on its behalf in light of the analysis in Hamdan.

So if Bush wants to base policy on the Court's "tacit" decisions in Hamdan, I expect he'll by ending the NSA program immediately. I'm not holding my breath.

Cass Sunstein has a new post on the claims of a President's inherent power as Commander in Chief:

The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.

I have been very hard on Professor Sunstein and, personally, I appreciate him taking some time to discuss the issue in more detail. His earlier efforts were, in my view, simply not up to par. I discuss this effort below the fold.

I have been incredibly hard on University of Chicago Law Professor Cass Sunstein, and with good reason. His performance on Hugh Hewitt's radio show was horrible:

HH: Do you consider the quality of the media coverage here to be good, bad, or in between?

CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is.

Forget how wrong Sunstein is on the law, which I detailed in my linked post (and it is not just that Sunstein is wrong, it is that he virtually ignores the central issue here - the Congressional prohibition against that which the President has done and is doing). Look at how he smears and distorts those who disagree with him as being in "a libertarian panic." Look at how he misstates the President's claim of power - labelling it "fairly modest" when in fact it is sweeping. Indeed, it is the very claim of power rejected by the Supreme Court in Youngstown and Hamdi.

Professor Orin Kerr, who I wrote about previously, understands this and clarifies a muddled point:

I read Daily Kos only occasionally, so I just came across the post "A Little Bit of Monarchy" by Armando on the NSA surveillance program that includes some criticism of my long post last week. Armando's post is a week old, but the Daily Kos gets a jazillion readers, so I thought I would respond and explain Armando's misunderstanding. (Plus, I believe Charles Krauthammer may have had the same misunderstanding, so maybe it's a widespread misconception.)

. . . In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.

The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. . . .

Kerr understands what the issues are. Sunstein does not apparently. I'll discuss more Sunstein misunderstandings below the fold.

Markos links to ReddHedd's post on John Yoo where she says:

The WaPo has a lengthy profile of Berkeley Law Professor and architect of the Bush Administration's legal vision of absolute authority, John Yoo. In it, Yoo defends his legal interpretations by saying you can't judge him or his scholarship based on the results of his legal advice, but merely on the validity of his legal interpretation of black letter law.

Unfortunately for Mr. Yoo, he fails on multiple counts. Not the least of which because he failed to follow the cardinal rule of lawyering: present all sides of the issue, not just the ones your client wants to hear -- because it is the bad news that can be the most important thing in decision-making in any enterprise.

ReddHedd is entirely too kind to Yoo. Why? Because while Yoo may truly believe the Constitution should provide for unfettered power of the President acting as Commander in Chief, he is not a stupid man. He knows the Constitution does not provide such power to the President. It really is not a debatable point. Yoo was a lawyer with a conclusion seeking a justification. In short, a Legal Realist. That his lawyering was used to serve a theory repugnant to one of the central tenets of our government - that of a separation of power to provide checks and balances to the federal government - is precisely what one would expect from the likes of a Yoo, a Roberts, a ScAlito.

The most disappointment I have suffered in the legal mumbo jumbo surrounding these almost obscene defenses of Bush's trampling of the Constitution results from the inexplicable statements of Professor Cass Sunstein, who has twisted logic, facts, history and legal reasoning not only to defend the indefensible but to do it in horrendous fashion. Hell, Yoo is incredibly subtle and clever compared to the gross mistakes committed by Sunstein. And my question is WTF is up with that?

Also at My Left Wing.

Cass Sunstein has a take on the warrantless surveillance ordered by President Bush that sadly misses the point:

The authorization for the use of military force (AUMF) says, "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants -- notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.

The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)

This brief statement does not answer several other questions, including (a) whether, as the Attorney General also contends, the President has inherent constitutional authority to engage in this kind of wiretapping (authority he does not need if the AUMF is sufficient), (b) whether specific statutes negate the authority that the AUMF appears to give (as Senator Feingold has argued -- an argument that in some tension with Hamdi), and (c) whether there might be a possible Fourth Amendment barrier to these wiretaps (a barrier that might remain even if the AUMF provides authorization, see Hamdi on due process limits on the power to detain).

With all due respect to Professor Sunstein, he apparently didn't finish reading Hamdi:

All agree that, absent suspension, petition for writ of habeas corpus remains available to all persons detained in the United States. U.S. Const., Art. 1, Section 9 . . . Only in the rarest circumstances has the Congress seen fit to suspend the Writ. . . . At all other times, it remains a critical check on the Executive, ensuring that it does not detain individuals, except in accordance to law.

. . . It is undisputed that Hamdi is properly before an Article III court under 28 U.S.C. Section 2241. Further all agree the Section 2241 and its companion provisions provide at least the outline of a skeletal procedure to be afforded a petitioner for habeas review.

. . .[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, but most assuredly envisions a role for all three branches when individual liberties are at stake.

Yes, Professor Sunstein is right, through the Afghanistan War Resolution, Congress authorized the President, acting as Commander in Chief, to detain enemy combatants. But this authorization was NOT unfettered. It remained subject to the habeas corpus petition rights, UNLESS the Congress suspended such rights, and to the procedures established by the Congress.

It is absurd for Professor Sunstein to argue that Hamdi can support the President's argument when Hamdi clearly establishes that the President's war power is subject to Congressional restraint. In Hamdi, it was the President's power to detain enemy combatants that was made subject to Congress' decisions on habeas corpus. On warrantless surveillance, the President's power, if it exists, is subject to FISA.

More on the flip.

Also posted at The Next Hurrah.

As though it weren't enough that Nuclear Republicans are ignoring what makes the "constitutional option" constitutional, and then throwing out the rulebook to make it work, they're also selling the theory to the public by claiming that even "liberal" law professors support it.

In a memo dated February 28th and widely circulated to members of the press, C. Boyden Gray, formerly White House counsel to the first President Bush, attempted to bolster his own questionable constitutional interpretation of the nuclear option with quotes taken from three well-known legal scholars: Susan Low Bloch and Mark Tushnet of Georgetown University, and Cass Sunstein of the University of Chicago. In each instance, Gray made certain to set up the quotes by establishing that they came from "liberals" or a "prominent Democratic strategist." In two of the three cases, Gray fails to cite to any actual source for the remarks he attributes to these professors, and in all three he leaves out context critical to understanding their comments, in at least one case, completely reversing the writer's intent.