BUSH APPOINTEE in Northern District of New York, Deals Right to Dissent a Death Blow! Options

[Livyjr]

And all that then transpired, leading up to this very moment in time, there its origins lie ....

In 1946, with a vote of WE, THE PEOPLE in the County of Rensselaer in the State of New York ....

In accordance with section 3 of Article XVII of the New York State Constitution ....

To be continued ....

Livyjr ------

Do you know who made the video tape and where it is now?

A.B.

The digital camera was in the hand of the PLAINTIFF when he was being assaulted by Jeffrey Pelletier, and so, the camera actually made the videotape, while the assault was going on, with all of the sounds of the assault, and the invective hurled at the PLAINTIFF by Pelletier during the assault captured in digital quality audio, on the videotape, and after, when Jeffrey Pelletier, the assailant, was looking right in to the lens, and bragging on camera that even with the videotape of the actual assault, itself, PLAINTIFF wouldn't be able to do doodly-squat about it, because Jeffrey Pelletier, the assailant, was "protected" in Rensselaer County, and boy, was that ever true:

"F***ING RETARD ...."

"Who you going to show that videotape to?"

"NOBODY CARES!"

"F***ING RETARD ..."

Copies of the videotape are all over the place up here, in fact, EXCEPT .....

Before a jury!

Eliot Spitzer has a copy, the FBI has a copy, I believe, the Rensselaer County District Attorney's Office has a copy, the New York State Police have a copy, the Town of Poestenkill has a copy, the County of Rensselaer has a copy, and the "developers" allegedly have a ton of them out, because they like to watch the assault, over and over again, especially since it shows them winning, and that videotape is an incentive to everyone else around to keep their damn mouths shut:

"SEE WHAT WE DID TO THIS GUY?"

"WHO WANTS TO BE NEXT?"

Especially now!

"Additionally, to the extent that PLAINTIFF has attempted to assert claims against Jeffrey Pelletier for assault, he has not alleged that Pelletier is a state actor under section 1983."

- Federal Second Circuit Court of Appeals, December 15, 2005, Sotomayor, Katzmann and Eaton, all concur

[Livyjr]

"Additionally, to the extent that PLAINTIFF has attempted to assert claims against Jeffrey Pelletier for assault, he has not alleged that Pelletier is a state actor under section 1983."

- Federal Second Circuit Court of Appeals, December 15, 2005, Sotomayor, Katzmann and Eaton, all concur

And here, a reader wishes to know who is speaking when the word "retard" is being spoken, and that answer would be Jeffrey Pelletier ....

On the assault videotape that forms both the backdrop and the centerpiece of this unsuccessful effort by a disabled veteran in the State of New York to get to a jury of his peers in Federal District Court for the Northern District of New York ....

And it could more properly be said that on the videotape, Jeffrey Pelletier is not speaking ....

He is hurling invective .....

"LOOK AT HIM SHAKE ....."

This right after Pelletier, on camera, makes a "bull rush" at the PLAINTIFF and grabs him and "cracks him", which is to say, grabs the PLAINTIFF in a wrestling move and cracks PLAINTIFF's spine sideways .....

"LOOK AT HIM SHAKE ....."

"F***ING RETARD ....."

And it is clear that when he is hurling this invective that Mr. Pelletier is standing right in front of the camera, looking right down the lense, because he can see the red light on under the lense, which indicates the camera is recording ....

"WHO YOU GONNA SHOW THAT VIDEOTAPE TO ....."

Well, the thought was a jury , Jeffrey, but ....

Well, you know ....

[Livyjr]

"LOOK AT HIM SHAKE ....."

"F***ING RETARD ....."

And here, another reader makes inquiry as to whether all of these federal courts judges were fully aware of the existence of this videotape, and the graphic violence depicted on it, and that answer is YES ....

They were ....

As was said, it was both the backdrop and centerpiece of this case ....

[Livyjr]

"Alito to Senate: Good Judge Has No Agenda"

By JESSE J. HOLLAND, Associated Press Writer

WASHINGTON - Supreme Court nominee Samuel Alito told senators Monday that good judges don't have an agenda, don't look for partisan outcomes and always "do what the law requires" as the Senate opened hearings on President Bush's choice for the high court.

"A judge can't have any agenda."

"A judge can't have a preferred outcome in any particular case," Alito told the Judiciary Committee in a brief statement in which he made a distinction between judges and attorneys working for clients.

"The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand," Alito said.

"But a judge can't think that way."

"A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client."

"Additionally, to the extent that PLAINTIFF has attempted to assert claims against Jeffrey Pelletier for assault, he has not alleged that Pelletier is a state actor under section 1983."

- Federal Second Circuit Court of Appeals, December 15, 2005, Sotomayor, Katzmann and Eaton, all concur

And here, another reader has aked, "Who is Jeffrey Pelletier?"

And the answer to that, from the record generated in the Federal District Court for the Northern District of New York in Albany, New York in this matter is that from all appearences, Jeffrey Pelletier would have to be the CLIENT of Federal District Court Judge Gary L. Sharpe, himself .....

And that conclusion is drawn from the record itself in this matter, or the DOCKET, which is a public record ......

And if one were to study that DOCKET, what they would notice is that Jeffrey Pelletier never filed an ANSWER to the Amended Complaint, nor did he ever file any other paperwork with the Court, which is to say, he did not appear ....

He had no outside counsel ....

He never even lifted a finger, as far as one can gather from the DOCKET ....

Which should have been interpreted as a default, had the normal rules of practice applied in this matter .....

But Jeffrey Pelletier did not have to trouble himself with such trifles ....

Because Judge Sharpe entered a MOTION TO DISMISS on Jeffrey Pelletier's behalf as his advocate, and then, in his capacity as a Federal District Court judge, he granted his own motion ...

And dismissed the Amended Complaint against Jeffrey Pelletier ....

When that action by Judge Sharpe was appealed to the Second Circuit Court of Appeals in New York City, once again, Jeffrey Pelletier never filed a stitch of paperwork, nor did he respond to the filing of the appeal .....

Once again, Jeffrey Pelletier simply sat back, and watched ...

And waited ...

For the appeal to be dismissed ....

And for himself to once again be IMMUNIZED by the court, as happened, apparently, like clockwork for Jeffrey Pelletier ....

Which certainly calls into question, then, this statement by Judge Alito, to wit:

"A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client."

[Livyjr]

"A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client."

EXCERPT FROM PREAMBLE TO LAWYER'S CODE OF PROFESSIONAL RESPONSIBILITY IN THE STATE OF NEW YORK

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity of the individual through reason for enlightened self-government.

Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection.

Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.

[Livyjr]

"Judge selection process weighed - Democrats to screen candidates, replacing cross-endorsement deals with the GOP"

By ELIZABETH BENJAMIN, Capitol bureau, Albany, New York Times Union

First published: Thursday, January 12, 2006

ALBANY -- With political parties' judicial selection methods under fire, state Democratic Committee Chairman Herman "Denny" Farrell Jr. is trying to make sure that only the most "highly qualified" candidates run on the party's line for Supreme Court.

Farrell has convened a committee to develop a screening system, modeled after a process used for nearly three decades by the New York County Democratic Committee, which he also heads.

Legislative proposals to change how judicial candidates are picked lack bipartisan support.

So, the party needed to act, Farrell said.

"The bottom line is we must do everything we can to ensure the public has confidence in the quality of its judiciary," he said.

Judicial selection is under intense scrutiny -- particularly in Brooklyn, where former Democratic County Chair Clarence Norman was sentenced Wednesday to 2 to 6 years in prison on campaign corruption charges.

The case against Norman, a former assemblyman who still faces more charges, stemmed from legal probes into whether he and other party leaders sold judgeships.

The Brennan Center for Justice at the New York University School of Law sued the state Board of Elections in 2004, alleging the process of selecting Supreme Court candidates is unconstitutional and violates voters' and candidates' rights.

A decision is pending.

Although candidates are technically selected at judicial nominating conventions, party leaders usually cut cross-endorsement deals in advance, making it unusual for elections to be competitive or for nonpolitically connected candidates to get on the ballot.

The Manhattan Democratic Committee uses an independent screening panel to help pick judicial candidates.

Its members are designated by bar associations, law schools and community organizations.

It reviews potential candidates and recommends those who are "highly qualified" for each judicial vacancy.

The party only endorses candidates who agree to be screened.

Farrell said he expects to have a process ready to be voted on at the party's fall meeting.

The League of Women Voters of New York State hailed Farrell's move, calling it "an important first step toward a longtime league goal of judges being selected on the basis of merit."

[Livyjr]

EXCERPT FROM PREAMBLE TO LAWYER'S CODE OF PROFESSIONAL RESPONSIBILITY IN THE STATE OF NEW YORK

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity of the individual through reason for enlightened self-government.

Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection.

Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.

And here a reader interposes the question of why no police report was filed when the assault actually took place, and the answer to that question is that a police report was in fact filed .....

And exists to this day ....

Or at least copies do ....

And like the videotape of the assault itself, copies of that police report are believed to be widely circulated .....

So that at the minimum, New York State Attorney General Eliot Spitzer was aware of the filing of that police report in his capacity as chief law enforcement officer in the State of New York .....

That police report was filed with the Rensselaer County Sheriff's Department at its Town of Sand Lake substation in the bus garage of the Averill Park High School ....

At the time the police report was filed, which was the later afternoon of the day of the assault, the deputy in charge actually viewed the videotape, and then told the PLAINTIFF that because of who was involved, that being Jeffrey Pelletier, that someone way above him was going to have to do something about having Jeffrey Pelletier arrested, and that was that ...

Because it was not in his power to do it, by himself, without clearance from "higher" .....

However ...

For the record, he would make out a police report, and he did ....

And there the matter died ...

Simple as that ....

[Livyjr]

And for anyone just dropping in and wondering what this thread is about, it is a post mortem, perhaps, or an obituary, more likely .....

It is a story about what did happen to one man in America who went into "public service" in America .....

Went into "public service" with a view that being a part of the "public" himself, that you don't screw yourself ....

And you don't sell out those others who are depending upon your integrity to protect and safguard their lives, health and property .....

Which is not true, of course ....

In Rensselaer County in the State of New York, YOU DO SELL OUT YOUR PUBLIC TRUST, OR YOU WILL BE CRUSHED .....

And that is what we are talking about in here ....

What is true ....

What is real ....

And what is not ....

In 1986, April, give or take, a man in the State of New York who was licensed in that state as a professional engineer to protect and safeguard life, health and property in the State of New York received a telephone call from a man named Kenneth Van Praag, the purported Rensselaer County Public Health Director and head of the corrupt Rensselaer County Department of Health in Troy, New York, a small city on the east bank of the Hudson River, north of New York City, and across the river from Albany, New York, the capital of the state ....

"We need an engineer, would you be interested," Van Praag said .....

In reply, the engineer asked Van Praag whether he needed an engineer, or a licensed professional engineer, because they are not the same thing, at least in the State of New York, supposedly ....

"Oh, they told us we had to get a licensed engineer ...", said Van Praag ....

And stop right there, said the engineer ....

"WHO told you that you HAD to get a New York State licensed professional engineer, and WHY ...."

"What do you need the services of a licensed engineer for?"

And that answer was simple - the State of New York had cut off the funding for the environmental health programs of the Rensselaer County Department of Health because of corruption ....

And the County of Rensselaer wanted that money ...

And so ....

A condition to regain that money had been placed upon them by the "state", and Rensselaer County was not happy about that, at all ....

Rensselaer County WANTED the corruption, instead ....

BECAUSE THERE IS NO MONEY IN INTEGRITY .....

ALL THE MONEY IS IN GRAFT, INSTEAD .....

Gain a position of public trust, something to do with law enforcement, or code enforcement, and then SELL PASSES ...

FREE RIDES .....

For a price, of course .....

EXCEPT .....

This one engineer disdained to play the game .....

"If you want the mess cleaned up," said the engineer, "that is one thing ...."

"But I have lived here, and I know what is going on, and so, why should I immerse myself in that sewer of Rensselaer County politics ..."

"OH, NO, NO, NO ....," said Van Praag ......

"There will be no politics involved ....."

And that was a false statement, then, and now .....

Of course there is politics involved ....

Rensselaer County had its funding cut off because of "politics", and any attempt to get that funding restored was going to have to take those "politics" into consideration, because any attempt to get that money restored was going to have insure that the "politics" of the past were stamped out, at least as far as their "grip" on the Rensselaer County Department of Health was concerned .....

And what Rensselaer County wanted was someone who would come in from "outside", which is to say, by all appearances, from outside the sewer of local politics, and then "assure" people that all was now well, while in the meantime, keeping the corruption going with himself as a "PLAYER" .....

A LIAR is what Rensselaer County wanted .....

Someone without integrity .....

Someone who would look the citizens of Rensselaer County in the face, and lie to them that their health department was on the job, keeping them and theirs safe, when in fact, the Rensselaer County Department of Health was not doing its job of keeping groundwater in Rensselaer County safe and secure at all .....

And this is all a matter of public record, of course ....

Thousands upon thousands of pages, by now ....

Is it a unique story in OUR America?

That is hard to tell, of course .....

But is is true, nonetheless, if largely unsung .......

On August 22, 2001, to finally get rid of this engineer, the County of Rensselaer had John Christian Braaten, a man practicing CORPORATE MEDICINE for Northeast Health, Inc. in Troy, New York make out a fruadulent certification that this engineer was mentally ill and dangerous, so that Rensselaer County could then have a New York State Police SWAT Team take this man down, hard, placing him in four-point restraints in front of the gaping eyes of the "neighborhood" for transport to the secure mental health facility that Northeast Health, INC. runs in Troy, where this engineer was to be incarcerated, and TREATED as a mental patient, which is to say, his mind was to be destroyed ....

But Rensselaer County blew it ....

And the man got away .....

Temporarily, anyway .....

For once the net is cast, who really can run far enough to be outside its perimeter when it falls?

And this man was not trying to run away ...

This man was trying to run towards .....

Towards what he thought would be sanctuary on federal property in the city of Albany, New York, that being the Stratton VA Hospital where this person should have been safe and welcome as a disabled Viet Nam veteran with an identity card from the United States identifying him as such ....

But there was to be NO SANCTUARY that day .....

Nor ever again for this one man ...

Or at least, not here in the UNITED STATES OF AMERICA, anyway, where this man was born as one of its citizens ....

When this man went into the VA Hospital in Albany, New York on the morning of August 22, 2001 and identified himself by name, he was told point-blank that he was wanted by the police, that he was in trouble, that he was not to move from that spot that he was standing on, and the rest is history .....

Which is what we are talking about in here .....

And so ....

"Lawsuits demand answers by VA - Widows of veterans who died in drug study say men were guinea pigs"

By BRENDAN LYONS, Staff writer, Albany, New York Times Union

First published: Tuesday, January 17, 2006

ALBANY -- The last of seven widows of veterans who died while enrolled in corrupted drug studies at Stratton VA Medical Center have filed lawsuits against the U.S. Department of Veterans Affairs.

For many of the widows, the litigation is not about money.

They say it's about getting answers to why their husbands were used like guinea pigs and making sure it doesn't happen again.

"It was terrible," said Bertha G. Merritt, 74, who was one of two widows to file a lawsuit in the case last month.

"We were married 51 years, and a month and a half later he passed away."

Charles G. Merritt, a World War II Army veteran from Selkirk who died in August 1999, was one of dozens of men whose medical histories were forged or manipulated to qualify them for cancer research studies.

Once Merritt began taking the drugs, he became unable to swallow, talk, eat, breathe or walk without assistance, and his death was hastened by the experiment, according to court documents.

He was 74.

Hospital officials have placed blame on a former research assistant, Paul H. Kornak, who was sentenced last November to nearly six years in prison for negligent homicide and falsifying medical records.

Kornak posed as a doctor at Stratton, including carrying the title "M.D." on his VA-issued business cards, even though he never finished medical school and had been convicted in Pennsylvania of trying to illegally obtain a medical license.

Many of his supervisors allegedly knew about his troubled background and lack of credentials.

In all, Kornak is accused of undermining at least four major research studies involving dozens of veterans and hundreds of thousands of dollars.

The hospital earned thousands of dollars for each patient enrolled in the programs, in which pharmaceutical companies tested new drugs on cancer patients to obtain approval for them from the Food and Drug Administration.

At his sentencing last November, Kornak apologized for his crimes but told a judge he was "used" by the hospital's former cancer research director, Dr. James A. Holland, who was fired along with Kornak shortly after the scandal broke more than three years ago.

No one else, including Holland, has been charged in the case.

But the widows' lawsuits will enable the families to delve deeper into the scandal, which they contend was larger than Kornak.

"They gave my husband experimental chemo(therapy) after they asked him if he wanted it and he said 'No,' " Merritt said.

"They gave it to him anyway."

"The reason he did is because Dr. Holland kept after him and after him and kept coercing him."

Sixteen months ago, the Food and Drug Administration, which unearthed the corruption during an audit of the hospital's research program, took action seeking to disqualify Holland as a clinical investigator.

In a 12-page report that has been made part of the widows' litigation, the FDA said Holland "failed to protect the rights, safety and welfare of subjects ... repeatedly or deliberately submitted false information to the sponsor and repeatedly or deliberately failed to comply with the cited regulations, which placed unnecessary risks to human subjects and jeopardized the integrity of data."

Holland and his attorneys have declined comment.

He now works for a cancer hospital in Thomasville, Ga.

FDA officials did not respond to repeated requests for comment on Holland's case during the past two weeks.

Alan C. Milstein, a Philadelphia attorney representing some of the widows, said he also has had difficulty finding out the status of the FDA action pending against Holland.

Meanwhile, a settlement conference is scheduled next month in federal court regarding the death of James J. DiGeorgio, a 71-year-old Air Force veteran from Brunswick who died at Stratton in June 2001.

Attorneys for DiGeorgio's family recently filed a motion saying the case should be settled because there is no dispute that his death was caused by experimental drugs that he should never have been given.

"Our target is the VA," Milstein said.

"This was an institution-wide problem that really extended beyond Albany."

"We're not aiming really at Holland or Kornak at this point because the VA is the one that really has to defend their actions."

Merritt and other widows said their goal now is not to have the VA pay for what went on.

"It's to make sure it doesn't happen again to some other poor guy," Merritt said.

[Livyjr]

"Lawsuits demand answers by VA - Widows of veterans who died in drug study say men were guinea pigs" 
 
By BRENDAN LYONS, Staff writer, Albany, New York Times Union

First published: Tuesday, January 17, 2006

ALBANY -- The last of seven widows of veterans who died while enrolled in corrupted drug studies at Stratton VA Medical Center have filed lawsuits against the U.S. Department of Veterans Affairs.
 
For many of the widows, the litigation is not about money.

They say it's about getting answers to why their husbands were used like guinea pigs and making sure it doesn't happen again.

Charles G. Merritt, a World War II Army veteran from Selkirk who died in August 1999, was one of dozens of men whose medical histories were forged or manipulated to qualify them for cancer research studies.

Hospital officials have placed blame on a former research assistant, Paul H. Kornak, who was sentenced last November to nearly six years in prison for negligent homicide and falsifying medical records.

Kornak posed as a doctor at Stratton, including carrying the title "M.D." on his VA-issued business cards, even though he never finished medical school and had been convicted in Pennsylvania of trying to illegally obtain a medical license.

Many of his supervisors allegedly knew about his troubled background and lack of credentials.

Well, there we are, I guess ....

What this thread is really all about, I mean ....

Which is the quality of OUR lives as American citizens ...

Or in my own case, as a disabled person living here in OUR America ....

What are we "owed" as American citizens?

And before the "conservatives" can get howling overloud here, let me qualify this statement about what I mean by being "owed" .....

And it goes directly to this issue of this Kornack, above, who was not a doctor, and yet was employed by the Stratton VA Hospital in Albany, New York as though he were one ...

And so ...

People died ......

But ......

They were only old veterans and so what?

When we go to a United States government facility as a disabled veteran who fought and bled for this country, ARE WE ACTUALLY "OWED" A REAL DOCTOR BY THE UNITED STATES GOVERNMENT?

Or will some political hack without a medical degree suffice?

Because it is the "GOVERNMENT", after all ....

And well, you know ...

They are really in charge, and so, they get to give us what they want, and there is nothing we can do about it ...

Because in reality, as this case shows, there is not ....

Does the government of the UNITED STATES "owe" us competence?

Does it "owe" us integrity?

This case says IT DOES NOT ...

And further, this case makes it very unlikely that you will get integrity ....

Or competence ....

Because there is just too much money involved ....

And that money is not the money of the poor or powerless ....

And so ...

Crush the defenders of the poor and powerless ....

And the money is protected .....

Which is what the VA, which is to say, OUR UNITED STATES GOVERNMENT, was trying to do in this case with Kornack above here ....

Keep the cash flow coming in ...

Even though that meant some veterans had to die ...

And some papers had to be forged ....

And some drug companies had to be ripped off ...

It's the GOVERNMENT, after all, and they get to do what they want to do ...

Because they own the judges ...

And the guns ....

And had these wives not made a stink about it, likely it would still be going on ....

Because the VA punished the whistleblowers ....

And tried to keep the mess covered up ....

And that was all occurring within spitting distance of the New York State Health Department's CORPORATE OFFICES, and its Commissioner, who is responsible for policing doctors in the State of New York ....

And Ken Van Praag .....

Ken Van Praag was not a doctor, either ....

But that did not stop the New York State Department of Health, and its Commissioner from certifying him as one, so that he could then exert that power over OUR lives here in Rensselaer County, to OUR detriment ....

Just as Kornack "working" as a doctor at the Stratton VA Hospital was detrimental to the lives and health of all who came into contact with him in that capacity ....

Now, whether Ken Van Praag ever directly caused any deaths as Kornack is alleged to have done will never be known, at least to me ...

But as a licensed professional engineer in the State of New York, I can certainly attest to the harm that one man caused .....

The heart-ache ....

The extra thousands upon thousands of dollars that people would have to spend to make their land "health department" approvable AFTER they had already spent way more than the land was ever worth, because some lawyer or realtor was out there peddling bogus paper signed by Kenneth Van Praag, as though he too were a New York State licensed professional engineer, a Class "E" felony in the State of New York, by the way, which claimed the land met applicable codes, rules and regulations when such was not the case at all ....

One great big scam ...

And nobody cared ......

Because the amounts of money involved were huge, so that there was plenty to go around ....

And the people who were getting screwed?

Who cares about them?

What were they going to do about it, anyway?

How do you go after someone who has screwed you in a land sale, by making false claims that the land met the applicable codes, rules and regulations, when it did not?

How will you back up that claim, if you are not an engineer, and the health department engineer is ready to swear on a stack of bibles that such is the case, even though you are standing there in March, during the snow melt, and the land is underwater, which actually did happen in one instance under investigation by the FBI in this matter we are talking about in here?

So ....

Perhaps we are approaching the end of this thread ....

But whoever does really know ...

And so ...

[Livyjr]

Well, there we are, I guess ....

What this thread is really all about, I mean ....

Which is the quality of OUR lives as American citizens ...

Or in my own case, as a disabled person living here in OUR America ....

What are we "owed" as American citizens?

And before the "conservatives" can get howling overloud here, let me qualify this statement about what I mean by being "owed" .....

"Lawsuits demand answers by VA - Widows of veterans who died in drug study say men were guinea pigs" 
 
By BRENDAN LYONS, Staff writer, Albany, New York Times Union

First published: Tuesday, January 17, 2006

ALBANY -- The last of seven widows of veterans who died while enrolled in corrupted drug studies at Stratton VA Medical Center have filed lawsuits against the U.S. Department of Veterans Affairs.
 
For many of the widows, the litigation is not about money.

They say it's about getting answers to why their husbands were used like guinea pigs and making sure it doesn't happen again.

"It was terrible," said Bertha G. Merritt, 74, who was one of two widows to file a lawsuit in the case last month.

"We were married 51 years, and a month and a half later he passed away."

Charles G. Merritt, a World War II Army veteran from Selkirk who died in August 1999, was one of dozens of men whose medical histories were forged or manipulated to qualify them for cancer research studies.

Once Merritt began taking the drugs, he became unable to swallow, talk, eat, breathe or walk without assistance, and his death was hastened by the experiment, according to court documents.

He was 74.

I wonder how many people out there reading these words can appreciate the asset to OUR community that these old men represented ...

The things they had seen ...

The things they had done .....

What they had endured ...

For YEARS .....

People like Mr. A.B. in here, who was down on some island on the other side of the world, in the southern hemisphere, which would give that island a totally different sky at night, for years ....

Our own Mr. A.B. .....

It is not the stories these men could tell that made them so important to us in the younger generations .....

It was their "BEING" itself .....

They were living embodiments of their times ...

And the experiences of their lives ...

And when they stood tall, well ......

How could a younger person find an excuse to not do the same?

And now .....

These assets to OUR community are gone ...

KILLED FOR MONEY ....

By the GOVERNMENT OF THE UNITED STATES OF AMERICA .....

Yes ...

That is right ....

DRUG TRIALS .....

"Hey, guys, let's pump some of this **** into this guy's veins and see what it does to him ...."

And that is what they did, the GOVERNMENT OF THE UNITED STATES OF AMERICA ...

They pumped **** into the veins of these old men ....

And they killed them ...

And for killing them in that horrible way, the GOVERNMENT OF THE UNITED STATES OF AMERICA GOT PAID ...

And handsomely so, by all accounts .......

And so ....

MY QUESTION ......

As American citizens, what are we owed ....

And this thread has been dissecting that question all along, as this case made its way from United States District Ccourt for the Northern District of New York to the Second Circuit Court of Appeals in New York City ....

What are we owed?

Protection of law?

And as these old men who were killed for money by the GOVERNMENT OF THE UNITED STATES OF AMERICA found out, that answer is NO ..

NO ..

Protection of law in America is a chimera ...

A will-o-the-wisp ....

A nonentity ....

After all, what does a government that will kill old men by injecting **** into their veins to experiment on them for money care about protection of law?

When you arre killing people for money, or torturing them, protection of law is an impediment ...

And so ...

[Livyjr]

Protection of law in America is a chimera ...

A will-o-the-wisp ....

A nonentity ....

After all, what does a government that will kill old men by injecting **** into their veins to experiment on them for money care about protection of law?

When you are killing people for money, or torturing them, protection of law is an impediment ...

And so ...

protection of law is an oxymoron

And that is a very interesting thought, indeed, Snuffysmith ....

One that begs to be explored ....

And so ......

[Livyjr]

OXYMORON: a combination of contradictory or incongrous words ......

[Livyjr]

OXYMORON: a combination of contradictory or incongrous words ......

A ways back, probably early-1987, I had what could be called a "Communication" with a local attorney and former Congressman up my way about this thing of protection of law being an oxymoron .....

He had sent me a "LAWYER'S LETTER", which letters, of course, are very powerful documents indeed, invoking all kinds of fear into the heart of the reader, or so the lawyer would like to believe, anyway, and in that letter, well, this lawyer got going on about how he had been out to the Town of Brunswick Zoning Board on behalf of someone or other .....

And that Tom Simkins, the Zoning Board Chairman, had explained to this lawyer in front of his client and everyone else in attendance in the room that I was interpreting the law in a certain way, so that this lawyer's client was not just going to be able to waltz in there that night and walk out back out again with a bogus re-zoning that he could then use to batter me over the head with for an approval ....

And of course, that got this lawyer kind of huffy ...

To be humiliated like that in front of people, nonetheless ....

By a twerp like me ......

And so ...

Well, that lawyer, he was pretty indignant in his letter and he told me so, in no uncertain terms ....

"YOU ARE NO LAWYER ..."

"HOW DARE YOU INTERPRET THE LAW ..."

And since this was in the form of a letter, well ....

Let's just say that I had time to think about it, the fact that I really was not a lawyer, and never claimed to be actually .....

Because I never like to be hasty ...

To be rash ..

Or precipitate ...

Unless that is what the moment calls for, of course ....

But this wasn't one of those times ....

And so ....

What I told that lawyer back in a letter was that in these uncertain times in which we all find ourselves, where there are seemingly no horizons, and it is indeed difficult to know right from wrong, IT IS GOOD TO NOT ONLY KNOW WHO YOU ARE, BUT WHO YOU ARE NOT, AS WELL ....

And so ..

I knew I was not a lawyer is what I told that lawyer, and further, I told this lawyer that it was important to me that I knew I was not a lawyer, because if I was actually out there portraying myself to the public as a lawyer when I was not one, well, let's face it; that would be proof that I was dishonest or delusional or something ....

And since I was not either dishonest or delusional, well ...

To the contrary, what I know I am is a licensed professional engineer charged with upholding and enforcing the New York State Public Health law in the County of Rensselaer in the State of New York, and those codes, rules and regulations which I had been citing to the Chairman of the Brunswick Town Zoning Board just happened to be the "TOOLS" by which I enforced that law so as to provide protection of law to those who were guaranteed such by the New York State Constitution and due process of law to those who would make application of me for an approval ...

And that lawyer gave me a personal telehone call to apologize ....

And he was a gentleman .....

But he had been wrong ...

And he knew it ...

And so ....

IS THE TERM PROTECTION OF LAW AN OXYMORON?

Not to me would be my answer ...

It is what I was licensed for ...

To provide that protection of law ...

In accordance with the provisions of the New York State and United States Constitutions ....

And so ....

[Livyjr]

"YOU ARE NO LAWYER ..."

"HOW DARE YOU INTERPRET THE LAW ..."

As a trained enginer WITH A LICENSE TO PRACTICE from the State of New York, I AM THE LAW ....

Or a portion of it, anyway, that portion being those words called "law" that are intended to be protective of life, health and property in the State of New York ...

The "police power" of the State embodied in human form ...

Just as the uniformed police officer on the street SHOULD BE an embodiment of the Penal Law .....

My LICENSE is equivalent to the policeman's badge ....

Or should be, anyway, if we had a more perfect union, here in OUR America ......

Which we don't .....

But I digress ....

If as an engineer with a license to practice from the State of New York, I am the living embodiment of the concept of "protection of law", which I do not believe is oxymoronic at all, at least in theory, then what exactly is a lawyer?

Beyond being 3,000 pounds of arrogance in a five pound sack?

Clearly, as this Second Circuit Court of Appeals SUMMARY ORDER now under discussion in this matter illustrates incandescently, the lawyers in our society possess great power, with absolutely no responsibility whatsoever attached to how that power is used, or for what purposes ...

While I, the engineer with the license, have no power at all ......

Despite having great responsibility for the protection of health and property attached to that license ....

Which then does make the concept of protection of law completely OXYMORONIC, just as Snuffysmith posits it to be ....

And this is not just to "snipe" at lawyers, now ...

It is so easy to do, and they are such easy targets, that it is hardly worth the time and effort to do so ...

And it is a complete and total waste of time, to boot, because while "sniping" might be a fun game to play, THIS IS NOT A GAME IN HERE, and so ...

To be contined ....

[Livyjr]

"Lawyers rue erosion of client protections - Efforts to compel attorney general to testify about Bush are the latest issue"

By MICHELE MORGAN BOLTON, Staff writer, Albany, New York Times Union

First published: Friday, January 20, 2006

ALBANY -- Executives at accounting giant KPMG did it.

At Tyco too.

And Enron.

White-collar defendants accused of corporate crimes are increasingly waiving the attorney-client privilege to demonstrate their eagerness to cooperate with state and federal prosecutors to get a break on sentencing.

Attorneys are alarmed at the practice they say undermines a 500-year-old principle.

What developed in Elizabethan England as the right to keep conversations between a lawyer and client private is one of the legal system's fundamental protections.

Or is it?

The question comes as the National Security Agency's eavesdropping has triggered a firestorm of controversy and U.S. Attorney General Alberto Gonzales could be called to testify before the Senate Judiciary Committee about communications with his client, President George W. Bush.

"With the privilege, we and our clients are secure in the knowledge that we cannot be subpoenaed or otherwise forced to divulge what they tell us," said A. Vincent Buzard of Rochester.

"Only with that protection can our clients tell us the whole story, and only then can we provide effective counsel or advocacy."

Buzard, who is president of the New York State Bar Association, has formed a task force on the issue.

"Any threat to the attorney-client privilege strikes at the heart of what we do as lawyers," he said.

Waiving the privilege "cuts to the heart of the integrity of the criminal justice system," said Albany Law School professor Laurie Shanks.

"It also undermines credibility."

In New York, the Lawyers' Code of Professional Responsibility prohibits prosecutors -- or any attorney -- from communicating directly with defendants who are represented by a lawyer.

Federal and state prosecutors maintain they aren't trying to get access to the advice an attorney provides to a client, they just want to assemble the facts in the case.

A 1989 memo by then-U.S. Attorney General Richard Thornburg said that federal prosecutors are not bound by the same rules as other lawyers so they can talk to any defendant they want to.

A Jan. 20, 2003, memo by then-Deputy Attorney General Larry D. Thompson said corporations hoping to avoid prosecution must waive the attorney-client privilege.

Albany defense lawyer Terry Kindlon said the government is capitalizing on a post-9/11 climate of fear.

"I would expect that any prosecutor who wanted to justify invasion of the attorney-client privilege at this time would invoke the need to fight terrorism," said Kindlin, who represents one of two area men accused of terrorism now awaiting federal trial.

It's the latest buzz word that lets law enforcement get information, he said.

"If you look back just a little, you'll find prosecutors justifying invasion of the right to fight organized crime, to fight drugs, to fight corporate corruption," Kindlon said.

"Whichever kind of made-up criminal-law crisis is on this month's milk carton will most likely be used to justify a calculated violation of rights."

It's always easier to give up someone else's rights, Kindlon said:

"And I wish that those people would take a moment to reflect, and to realize, that when you give up someone else's rights ... you are, in a very real way, giving up your own."

Federal appeals courts are in conflict over related ethics issues, according to Patricia Salkin, author of "Ethics in Government, The Public Trust: A Two Way Street," and associate dean of Albany Law School's Government Law Center.

Salkin is an expert on how the attorney/client privilege applies to government lawyers.

Do they represent the entity, the people in it or the chief of it? she said, adding, "It becomes a political issue."

"They want to claim privilege when they want to, and then want to say it doesn't exist, when they don't want it to," Salkin said.

"The rules of the game should apply to everyone."

Michele Morgan Bolton can be reached at 434-2403 or by e-mail at mbolton@timesunion.com.

[Livyjr]

It's always easier to give up someone else's rights, Kindlon said:

"And I wish that those people would take a moment to reflect, and to realize, that when you give up someone else's rights ... you are, in a very real way, giving up your own."

A thought, anyway .....

Which is why we are running this thread ....

[Livyjr]

And yes, this does indeed look like a case of pure mental illness arising here .....

But whose?

DATE: October 11, 1988

TO: John Buono, Rensselaer County Executive

FROM: Associate Public Health Engineer, Rensselaer County Health District

SUBJECT: Integrity of Environmental Health Programs

As the Director of the Environmental Health Division, it is my responsibility to certify on behalf of Rensselaer County the integrity of the Code Enforcement Programs to the State of New York for the purpose of payment of our State operating funds.

I have reached a juncture where such certification by myself is no longer feasible.

My certification of our operations is as a licensed professional.

My conduct is governed in large part by Part 29 of the Codes of the Education Department which sets forth the actions deemed to constitute unprofessional conduct on the part of licensed individuals.

Section 29.1(b)(6) defines unprofessional conduct as "willfully making or filing a false report, or failing to file a report required by law or by the Education Department, or willfully impeding or obstructing such filing, or inducing another person to do so."

I can no longer vouch for the integrity of our programs and will not place my professional standing in jeopardy.

It is my professional opinion stated in writing to yourself that the programs I am responsible for have been very seriously undermined and compromised.

As my internal investigation proceeds, the probability of actions for damages against the Department increases, due to errors of omission and commission of former engineers and the Public Health Director.

As the Public Health Law requires me to conduct investigations into incidents involving public health nuisance or hazard, I find myself in the course of such investigation returning to our own files with consistent violation of code on the part of County staff.

MAY 25, 1989

PRESS STATEMENT OF REPUBLICAN RENSSELAER COUNTY EXECUTIVE JOHN L. BUONO CONCERNING HIS DECREE THAT DAY THAT THE PLAINTIFF HEREIN, A NEW YORK STATE LICENSED PROFESSIONAL ENGINEER, COULD NO LONGER PRACTICE IN THE RENSSELAER COUNTY HEALTH DISTRICT IN HIS CAPACITY AS HEALTH DISTRICT ASSOCIATE PUBLIC HEALTH ENGINEER

"I cannot in good conscience condone the conduct of an employee who consistently stated that he worked for the State of New York, rather than Rensselaer County ....."

[Livyjr]

MAY 25, 1989

PRESS STATEMENT OF REPUBLICAN RENSSELAER COUNTY EXECUTIVE JOHN L. BUONO CONCERNING HIS DECREE THAT DAY THAT THE PLAINTIFF HEREIN, A NEW YORK STATE LICENSED PROFESSIONAL ENGINEER, COULD NO LONGER PRACTICE IN THE RENSSELAER COUNTY HEALTH DISTRICT IN HIS CAPACITY AS HEALTH DISTRICT ASSOCIATE PUBLIC HEALTH ENGINEER

"I cannot in good conscience condone the conduct of an employee who consistently stated that he worked for the State of New York, rather than Rensselaer County ....."

The world of politics in the corrupt State of New York ....

Or why we have no integrity in OUR government ...

Or faith ...

Or trust ...

"A fall, a glimpse of patronage - Records reveal how Erin Dreyer used friends in high places to get and keep political jobs"

By BRENDAN LYONS, Staff writer, Albany, New York Times Union

First published: Sunday, January 22, 2006

In 1994, Erin Dreyer graduated from college with a degree in political science and a plan to put it to good use.

She took jobs that summer as a waitress and a bookstore clerk to bide time as she kept close tabs on George Pataki's first campaign for governor.

As the daughter of William Ennis, a politically influential insurance broker from Saratoga Springs, Dreyer gravitated toward a career in government.

"I did not want to become a civil servant."

"... I wanted to work as an appointee," Dreyer said in a deposition that's part of a lawsuit she filed against the state.

"I wanted a political job."

"I wanted to work for the governor."

When Pataki won election that fall over incumbent Democratic Gov. Mario Cuomo, Dreyer's connections paid off.

Saratoga County Republican Chairman John "Jasper" Nolan, who was poised to take advantage of the patronage offerings that come with victory, shipped her resume to the governor's office among hundreds of other applications from the politically faithful.

Patronage, after all, is as old as politics and perfectly legal.

Now, more than a decade after Dreyer netted her first state job -- a low-level position in the Department of Labor -- her scandal and litigation-plagued career provides a rare look inside the shadowy world of political patronage, where people with little or no qualifications can end up in some of the most important jobs in government.

Dreyer, court records show, repeatedly used friends in high places to get and keep jobs -- people in the offices of the governor, a local congressman, Senate majority leader and the Saratoga County Republican Party.

Years later, a Saratoga County grand jury would declare that she had engaged in misconduct and demand she be removed as the trusted executive over the Saratoga Springs Police Department.

For her part, Dreyer, 33, who is married and has two young children, has denied the allegations, and her attorney filed a lengthy response challenging the assertions.

In a brief interview last week, Dreyer said her problems have left her reeling.

"I (still) have a passion for government," she said.

"Have I seen the dark side of politics?"

"Yes, I have."

After leaving the Labor Department, she went to work as a legislative aide in the Senate, joining the staff of Sen. Robert DiCarlo, R-Brooklyn, before he lost a re-election bid in 1996.

From there, the governor's office secured Dreyer a job as secretary to the director of the Division of Veterans Affairs.

"She kind of came to me through politics," said John L. Behan, a former state assemblyman and decorated Vietnam War veteran who ran the agency for a few years before retiring in 1998 amid allegations he'd made sexually charged comments.

"In working with Erin, although she had some difficulties, she was very independent and strong thinking."

"My memories were that she was faithful and she showed up."

But when Behan left, Dreyer's work habits, including working shortened days to juggle motherhood and a 30-minute commute, began stirring trouble.

George Basher, who took over when Behan left, said he inherited a "chaotic" agency.

Soon, he has testified, he began to sense resentment from staff members about Dreyer's short days, poor work ethic and inability to learn the agency's mission.

A little more than a year later, Basher would finally get clearance from the governor's office to fire Dreyer.

As a result, Dreyer sued the state, Basher, and Harvey McCagg, a longtime appointee in the agency, claiming she was fired because of gender bias and after being told by a colleague that veterans didn't want to deal with a woman.

McCagg, a former newspaper editor from Columbia County, declined comment.

Dreyer contends he told her he could not work with a woman "as my equal."

Behan said Dreyer's problems with McCagg were widely known.

"Harvey had a problem just working with women," Behan said in an interview.

"He also wasn't that cooperative with me."

But sworn testimony from numerous other people who worked with Dreyer at Veterans Affairs tell a different story.

Mary Quay, a longtime secretary, said Dreyer delegated her duties to other secretaries, talked down to people, and rubbed her political connections in the face of anyone who challenged her authority.

"It became clear to me after a period of time that Erin's chain of command didn't run through the division," Basher said in a deposition.

"She was more inclined to respond to the political hierarchy that she had worked with, and was more loyal to that organization."

At one point, Basher said he told Dreyer she was ruining morale by working short days and refusing to answer phones, even though her title was "secretary."

He also fielded complaints that Dreyer knew little about the agency, which links state veterans with federal health benefits.

"Her response was that that was other people's problems, and if they wanted the same privileges she had, they could work on the same number of campaigns she worked on and do the same things she did," Basher said.

Despite her strong political connections, Dreyer was fired in March 2000.

The termination took place after attempts to save her fell short by officials with the governor's office, who had offered her a new job with the state Ethics Commission, which she declined.

Officials with the offices of U.S. Rep. John Sweeney, R-Clifton Park, whose campaign Dreyer had supported as a volunteer, and state Sen. Joseph L. Bruno, R-Brunswick, the majority leader, also tried to intervene at the request of Saratoga County Republican party bosses.

Thomas F. Doherty, Jr., Pataki's former deputy secretary, said he doesn't recall Dreyer ever mentioning problems related to sexual harassment or gender when she called him about her problems at work.

"I just got the sense that they didn't think she was doing a very good job there," Doherty said in a deposition.

Looking back, Dreyer's case raises questions about how someone with such a troubled work history, and no law enforcement experience, ended up running a police department after she'd been fired from a state agency.

Nevertheless, Dreyer was appointed deputy public safety commissioner in Saratoga Springs in May 2003 by her father's friend and political ally, Thomas Curley, the city's elected, part-time public safety commissioner.

The job paid $60,152.

But running a police department proved more problematic for Dreyer than what she had encountered at the veterans agency.

Her two-year run ended last May when her post was terminated by the City Council in the wake of a grand jury investigation into corruption and cronyism.

Curley refused to fire her, so the council voted 4-1 to eliminate her job and force her out.

While the grand jury declined to hand up criminal charges, it concluded after hearing from two dozen witnesses over seven months that Dreyer had no business running a police department.

The grand jury recommended she be fired for abusing her authority, and it accused her of endangering the public in a quest for political gain.

She also fixed tickets, had an extra-marital affair with an officer, and terminated the prosecutions of political associates, according the grand jury.

"It appears that almost every decision made by the deputy is determined by how the outcome shall advance her own political interest," the grand jury wrote.

"Her behavior reveals a greater interest in reveling in the perks of power rather than taking up the rigorous burden of public service."

Her attorney, Ronald G. Dunn, contends Dreyer was victimized by a political witch hunt, and that the outcome of grand jury proceedings can be manipulated.

"If you're going to be writing stories and accepting that things are established, you should be careful because things are not established," Dunn said.

"She got publicly excoriated and humiliated in the newspapers ... for, in her mind, doing her job."

Dunn also noted that in the lawsuit Dreyer filed against veterans affairs officials, in which she seeks $500,000, a federal judge has declined to dismiss the case.

It's scheduled for a settlement conference in the coming months.

"The problems they have are these inconvenient statements they made to her (about being pregnant and being a woman)," Dunn said.

"All of the sudden somebody who had been quite a good employee is now a bad employee."

It's now the second case Dreyer has pending in federal court.

Police Chief Edward Moore filed a lawsuit against Dreyer in August, contending she violated his rights in an attempt to force him into retirement.

Blair Horner, legislative director of the New York Public Interest Research Group, a good government group, said his organization has never done an analysis of the effects of patronage hiring.

Still, he said, "there are cautionary tales for politicians about abusing patronage positions."

"Our view is there should be far fewer patronage positions," Horner said.

"There are thousands, probably, of political appointees in state government."

"But no (one) human knows that many people."

"You end up relying on your allies, your politically connected friends, the people who deliver for your election, to get you the names of people who are hired."

The results, in many instances, are people with limited qualifications serving in important positions as part of a "patronage crapshoot," he said.

John "Jasper" Nolan, the longtime Saratoga County Republican Committee chairman who helped Dreyer get several government jobs, did not want to talk about Dreyer's problems.

But in a deposition that's part of her lawsuit against the state, Nolan said funneling resumes to Albany is just how the game is played.

"In 1994, when the governor won, I then had the opportunity to ... send letters to the governor's appointments office," Nolan testified.

"There were thousands of people coming in, and I mean thousands, over that period in 2002 that were looking for ... our support to find a job at the state level."

Dreyer, who is now selling pharmaceutical products, contends she has been treated unfairly.

"I feel like what you're doing is reviewing a movie halfway through," she said.

"I just can't seem to get my day in court."

Brendan Lyons can be reached at 454-5547 or by e-mail at blyons@timesunion.com.

[Livyjr]

DATE: October 11, 1988

TO: John Buono, Rensselaer County Executive

FROM: Associate Public Health Engineer, Rensselaer County Health District

SUBJECT: Integrity of Environmental Health Programs

As the Director of the Environmental Health Division, it is my responsibility to certify on behalf of Rensselaer County the integrity of the Code Enforcement Programs to the State of New York for the purpose of payment of our State operating funds.

I have reached a juncture where such certification by myself is no longer feasible.

My certification of our operations is as a licensed professional.

My conduct is governed in large part by Part 29 of the Codes of the Education Department which sets forth the actions deemed to constitute unprofessional conduct on the part of licensed individuals.

Section 29.1(b)(6) defines unprofessional conduct as "willfully making or filing a false report, or failing to file a report required by law or by the Education Department, or willfully impeding or obstructing such filing, or inducing another person to do so."

I can no longer vouch for the integrity of our programs and will not place my professional standing in jeopardy.

And section 3 of Article XVII of the New York State Constitution, entitled "Public Health" states in relevant part that:

The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.

"I cannot in good conscience .....

Condone the conduct .....

Of an employee ......

Who consistently stated .....

That he worked for the State of New York .....

Rather than Rensselaer County ....."

May 25, 1989 ....

In a very public move that is to gain him notice statewide and beyond, REPUBLICAN Rensselaer County Executive John L. Buono declares for the UNITARY EXECUTIVE in the County of Rensselaer, and by proclamation that day, declares himself to be same ....

Taking into his hands absolute control over all functions of government in the County of Rensselaer ....

To include absolute control over the professional judgments that are to be rendered by the associate public health engineer for the Rensselaer County Health District ....

A PROCLAMATION challenged by neither the New York State Department of health, nor the Education Department of the State of New York, which agency licenses and holds the power and authority to discipline professional engineers in the State of New York for making and filing false reports, and for failure to practice in substantial compliance with federal, state and local laws, rules and regulations governing the practice of engineering in the State of New York ....

On March 31, 2005, the Federal District Court for the Northern District of New York upheld that grant of power over the decision-making of licensed professional engineers in Rensselaer County in the State of New York that REPUBLICAN Buono had arrogated to himself by proclamation on May 25, 1989 ......

And on December 15, 2005, the Federal Second Circuit Court of Appeals, without comment, deferred to the judgment of the District Court ....

Which is the subject of this thread for those of you just stopping by for the first time .......

From the citizen's point of view, exactly what is transpiring here?

And how?

And why?

For these court decisions do not end anything at all ...

To the contrary, they have served to alert the citizens of the State of New York in this area where I am of the danger to OUR rights that now exists here in Rensselaer County and the State of New York ....

And so ....

This thread ....

To keep the continued evolution of this matter IN THE PUBLIC EYE ...

For our continued protection ...

Since we do not enjoy protection of law in the real world where we reside as living, breathing human beings ....

As well as alerting the civilized world out there .....

Of exactly how uncivilized it can be ...

Right here in OUR own America ....

Or Rensselaer County in the State of New York, anyway ...

SO ...

If you are new here, welcome ..

Come on in ...

Take a seat ..

Relax ....

And for all the regular readers, thanks for your continued patience ...

With this one old man ..

Who is narrating this on-going story about real life and real people ..

Here in OUR America ....

[Livyjr]

May 25, 1989 ....

In a very public move that is to gain him notice statewide and beyond, REPUBLICAN Rensselaer County Executive John L. Buono declares for the UNITARY EXECUTIVE in the County of Rensselaer, and by proclamation that day, declares himself to be same ....

Taking into his hands absolute control over all functions of government in the County of Rensselaer ....

To include absolute control over the professional judgments that are to be rendered by the associate public health engineer for the Rensselaer County Health District ....

The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?

By JENNIFER VAN BERGEN
----
Monday, Jan. 09, 2006

When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement.

That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.

This news came fast on the heels of Bush's shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.

And before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.

All these declarations echo the refrain Bush has been asserting from the outset of his presidency.

That refrain is simple:

Presidential power must be unilateral, and unchecked.

But the most recent and blatant presidential intrusions on the law and Constitution supply the verse to that refrain.

They not only claim unilateral executive power, but also supply the train of the President's thinking, the texture of his motivations, and the root of his intentions.

They make clear, for instance, that the phrase "unitary executive" is a code word for a doctrine that favors nearly unlimited executive power.

Bush has used the doctrine in his signing statements to quietly expand presidential authority.

In this column, I will consider the meaning of the unitary executive doctrine within a democratic government that respects the separation of powers.

I will ask: Can our government remain true to its nature, yet also embrace this doctrine?

I will also consider what the President and his legal advisers mean by applying the unitary executive doctrine.

And I will argue that the doctrine violates basic tenets of our system of checks and balances, quietly crossing longstanding legal and moral boundaries that are essential to a democratic society.

President Bush's Aggressive Use of Presidential Signing Statements

Bush has used presidential "signing statements" - statements issued by the President upon signing a bill into law -- to expand his power.

Each of his signing statements says that he will interpret the law in question "in a manner consistent with his constitutional authority to supervise the unitary executive branch."

Presidential signing statements have gotten very little media attention.

They are, however, highly important documents that define how the President interprets the laws he signs.

Presidents use such statements to protects the prerogative of their office and ensure control over the executive branch functions.

Presidents also -- since Reagan -- have used such statements to create a kind of alternative legislative history.

Attorney General Ed Meese explained in 1986 that:

To make sure that the President's own understanding of what's in a bill is the same . . . is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.

The alternative legislative history would, according to Dr. Christopher S. Kelley, professor of political science at the Miami University at Oxford, Ohio, "contain certain policy or principles that the administration had lost in its negotiations" with Congress.

The Supreme Court has paid close attention to presidential signing statements.

Indeed, in two important decisions -- the Chadha and Bowsher decisions - the Court relied in part on president signing statements in interpreting laws.

Other federal courts, sources show, have taken note of them too.

President Bush has used presidential signing statements more than any previous president.

From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives.

From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone.

And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times.

It is important, therefore, to understand what this doctrine means.

What Does the Administration Mean When It Refers to the "Unitary Executive"?

Dr. Kelley notes that the unitary executive doctrine arose as the result of the twin circumstances of Vietnam and Watergate.

Kelley asserts that "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," which resulted in a congressional assault on presidential prerogatives.

For example, consider the Foreign Intelligence Surveillance Act (FISA) which Bush evaded when authorizing the NSA to tap without warrants -- even those issued by the FISA court.

FISA was enacted after the fall of Nixon with the precise intention of curbing unchecked executive branch surveillance.

(Indeed, Nixon's improper use of domestic surveillance was included in Article 2 paragraph (2) of the impeachment articles against him.)

According to Kelley, these congressional limits on the presidency, in turn, led "some very creative people" in the White House and the Department of Justice's Office of Legal Counsel (OLC) to fight back, in an attempt to foil or blunt these limits.

In their view, these laws were legislative attempts to strip the president of his rightful powers.

Prominent among those in the movement to preserve presidential power and champion the unitary executive doctrine were the founding members of the Federalist Society, nearly all of whom worked in the Nixon, Ford, and Reagan White Houses.

The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction."

According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution."

According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

The Unitary Executive Versus Judicial Supremacy

The coordinate construction theory counters the long-standing notion of "judicial supremacy," articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law.

Marshall famously wrote there:

"It is emphatically the province and duty of the judicial department to say what the law is."

Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes.

And, as Kelley points out, the President is bound by his oath of office and the "Take Care clause" to preserve, protect, and defend the Constitution and to "take care" that the laws are faithfully executed.

And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush's recent actions make it clear that he interprets the coordinate construction approach extremely aggressively.

In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush's oath of office, as well.

After all, can it be possible that that oath means that the President must uphold the Constitution only as he construes it - and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn't like - even though they were validly passed by Congress and signed into law by him?

Analyzing Bush's Disturbing Signing Statement for the McCain Anti-Torture Bill

Let's take a close look at Bush's most recent signing statement, on the torture bill.

It says:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

In this signing statement, Bush asserts not only his authority to internally supervise the "unitary executive branch," but also his power as Commander-in-Chief, as the basis for his interpretation of the law -- which observers have noted allows Bush to create a loophole to permit the use of torture when he wants.

Clearly, Bush believes he can ignore the intentions of Congress.

Not only that but by this statement, he has evinced his intent to do so, if he so chooses.

On top of this, Bush asserts that the law must be consistent with "constitutional limitations on judicial power."

But what about presidential power?

Does Bush see any constitutional or statutory limitations on that?

And does this mean that Bush will ignore the courts, too, if he chooses - as he attempted, recently, to do in the Padilla case?

The Unitary Executive Doctrine Violates the Separation of Powers

As Findlaw columnist Edward Lazarus recently showed, the President does not have unlimited executive authority, not even as Commander-in-Chief of the military.

Our government was purposely created with power split between three branches, not concentrated in one.

Separation of powers, then, is not simply a talisman: It is the foundation of our system.

James Madison wrote in The Federalist Papers, No. 47, that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Another early American, George Nicholas, eloquently articulated the concept of "power divided" in one of his letters: The most effectual guard which has yet been discovered against the abuse of power, is the division of it.

It is our happiness to have a constitution which contains within it a sufficient limitation to the power granted by it, and also a proper division of that power.

But no constitution affords any real security to liberty unless it is considered as sacred and preserved inviolate; because that security can only arise from an actual and not from a nominal limitation and division of power.

Yet it seems a nominal limitation and division of power - with real power concentrated solely in the "unitary executive" - is exactly what President Bush seeks.

His signing statements make the point quite clearly, and his overt refusal to follow the laws illustrates that point:

In Bush's view, there is no actual limitation or division of power; it all resides in the executive.

Thomas Paine wrote in Common Sense:

In America, the law is king.

For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.

The unitary executive doctrine conflicts with Paine's principle - one that is fundamental to our constitutional system.

If Bush can ignore or evade laws, then the law is no longer king.

Americans need to decide whether we are still a country of laws - and if we are, we need to decide whether a President who has determined to ignore or evade the law has not acted in a manner contrary to his trust as President and subversive of constitutional government.

Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law. Her book, ARCHETYPES FOR WRITERS, about the characterization method she developed and taught at the New School University, will be out in 2006. She can be reached at jvbxyz@earthlink.net.

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