Josh Marshall asks, "Why oh why are we ruled by these liars?" The answer: because our press lets them get away with it:
Posted by DeLong at October 23, 2004 09:05 AM | TrackBackTalking Points Memo: by Joshua Micah Marshall: October 17, 2004 - October 23, 2004 Archives: Last night when discussing the White House's truth-bending revisionism on Tora Bora, I wrote that I had been "pretty skeptical of the Bush team's revisionism on this
count since the outlines of the Kerry critique have been a commonplace in national security and counter-terrorism circles for literally years."
Advertisement You'll remember that what I'm referring to here as 'Kerry's critique' is the charge that the US let bin Laden get away at Tora Bora because we 'outsourced' the job to local warlords and militiaman. The Bush campaign is now calling that a lie. Dick Cheney says it's "absolute garbage" and the campaign has enlisted retired general and now Bush surrogate Tommy Franks to help back their case.
Now Steve Soto points out one more reason why I and other who've followed this story for years were so skeptical.
Look at the lede of this Washington Post article from April 17, 2002 ...
The Bush administration has concluded that Osama bin Laden was present during the battle for Tora Bora late last year and that failure to commit U.S. ground troops to hunt him was its gravest error in the war against al Qaeda, according to civilian and military officials with first-hand knowledge.That really says it all.
And there's more.
Was bin Laden there, a claim Cheney and the Bush campaign now discount or treat as mere speculation?
Again from the Post: "Intelligence officials have assembled what they believe to be decisive evidence, from contemporary and subsequent interrogations and intercepted communications, that bin Laden began the battle of Tora Bora inside the cave complex along Afghanistan's mountainous eastern border."
The article goes on to say that though the administration had never publicly acknowledged that bin Laden slipped the noose in this way, "inside the government there is little controversy on the subject."
Then the paper quotes a government official "giving an authoritative account of the intelligence consensus," who says that, "I don't think you can ever say with certainty, but we did conclude he was there, and that conclusion has strengthened with time."
And as to the issue of outsourcing?
One more time from the article ...
After-action reviews, conducted privately inside and outside the military chain of command, describe the episode as a significant defeat for the United States. A common view among those interviewed outside the U.S. Central Command is that Army Gen. Tommy R. Franks, the war's operational commander, misjudged the interests of putative Afghan allies and let pass the best chance to capture or kill al Qaeda's leader. Without professing second thoughts about Tora Bora, Franks has changed his approach fundamentally in subsequent battles, using Americans on the ground as first-line combat units.In the fight for Tora Bora, corrupt local militias did not live up to promises to seal off the mountain redoubt, and some colluded in the escape of fleeing al Qaeda fighters. Franks did not perceive the setbacks soon enough, some officials said, because he ran the war from Tampa with no commander on the scene above the rank of lieutenant colonel. The first Americans did not arrive until three days into the fighting. "No one had the big picture," one defense official said.
I quote here at length for a simple reason, to make a simple. Though we cannot in the nature of things have absolute certainty about bin Laden's whereabouts, there is little doubt that bin Laden was there. We had a "reasonable certainty" he was there when the critical decisions were being made. And subsequent intelligence has only tended to confirm that belief. As to the issue of 'outsourcing,' the claim is unquestionably true. And it is widely believed that this was a key reason for the failure to capture bin Laden.
One might well argue, we hadn't hunted a bin Laden before. And I don't mean that flippantly. Had the Afghan tribesmen killed OBL in those hills, the decision might have seemed an inspired one, since it no doubt saved American lives. Perhaps a Gore or a Kerry administration would have made the same mistake.
What you simply cannot say is that the whole thing never happened. And yet that is precisely what the president and the vice president are now doing: Simply denying everything. Who you gonna believe? Me or your lyin' eyes?
They are, in old fashioned English, lying.
And the major news outlets covering the campaign -- as nearly as I've seen so far -- are just treating the disagreement as a he said/(s)he said in which both sides' arguments have equal merit.
Sums up the whole campaign.
And there's ample evidence as to why the press lets them get away with it. Take a look at Eric Alterman's discussion with Brokaw, Jennings, and Rather in the 11/1 Nation --http://thenation.com/doc.mhtml?i=20041101&s=alterman -- also excerpted at my website.
They complain about the (very real) pressures brought by the right. But, as Alterman notes, "Watching and listening, a part of me actually felt a bit of these multimillion-dollar babies' pain. Network news is getting hit from all sides. Their corporate owners are squeezing them at every opportunity to increase profits by simultaneously skimping on costs, pushing for 'tabloid' stories and dumbing down what's left. Viewership is declining both in numbers and demographic desirability. The future is clearly with narrow-cast networks, like Fox's right-wingers and Jon Stewart's fake-but-truer-than-the-real-thing news, and these dinosaurs are hanging on to the Cronkite/Sevareid tradition by their magnificently manicured fingernails."
I keep thinking about William Hurt's character in "Broadcast News." The moral emptiness of these broadcasters can been seen from their blank, self-conscious faces to those extraordinary fingernails.
Posted by: PW at October 23, 2004 09:55 AMEither Kerry will win or he won't.
If Kerry wins, then the question of why we are being ruled by these liars will be moot (except, of course, for the major purpose of cleaning up the mess.)
If Kerry looses, then we will have to assume that we will have four more years of lies.
The time will have come, not to ask why, but rather simply to start analyzing the situation.
A lie, basically, is a problem the speaker cannot deal with. What sort of lies is BushCo issuing? How often? In response to what? Analysis is called for here.
Having gained an understanding of the nature of the disease, we can identify weaknesses which would be vulnerable points of attack.
Posted by: Clauziwitz at October 23, 2004 10:02 AMIf Kerry wins, the opposition's falsehood-managers must find new productivity improvements to up-ratchet their machines--and nothing will be moot for long! If Kerry loses, it's back to the barricades... In either case, the classy prostitutes of the newsmedia, tube and print, may be in for a rude awakening, after their extraordinarily despicable performances throughout this Administration. How so? Because the internet is about to out-run them, in both typewritten and video.
Posted by: Lee A. at October 23, 2004 10:38 AMactually, i have complete confidence that, should kerry win, the media will somehow manage to find a way to work a little harder to expose executive branch malfeasance.
what really astonishes me, over and over (so it's obviously my problem) is the exceptional laziness of the modern media. It takes no time at all with the tools of the internet to research many matters, but if our solons of the media don't hear something from a "source," they don't bother to dig into it at all....
Posted by: howard at October 23, 2004 10:49 AMREAD THIS...
GOOD READING... FIRST ONLINE LAW SCHOOL (LITIGATION)
MOREOVER, HOW MUCH INFLUENCE DOES THE WASHINGTON POST COMPANY (KAPLAN, INC.) HAVE OVER THE U.S. DEPARTMENT OF EDUCATION, ABA, COURTS, ETC.
OPEN LETTER AND REQUEST FOR HELP
03-cv-1400 (Western District Pennsylvania)
I. INTRODUCTION
The inability during the allotted discovery period to obtain information from a defendant regarding pertinent issues is obviously prejudicial to a plaintiff in his attempt to prosecute his claims and obtain prompt resolution of his lawsuit. See Adams v. Trustees, N.J. Brewery Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (prejudice encompasses deprivation of information from non-cooperation with discovery as well as the need to expend resources to compel discovery).
The meritoriousness of a claim or defense is to be determined from the face of the pleadings. See C.T. Bedwell Sons v. International Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988); Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 870 (3d Cir. 1984). Here, the defendant never filed an answer to the Amended Complaint and thus have not presented even a facially meritorious defense.
Please note: On September 29, 2004, discovery closed without the defendant communicating any request, scheduling any deposition, and the like. Therefore, a motion for summary judgment is ripe for determination.
II. EXHIBIT ATTACHED TO DEFENDANT'S RESPONSE
The defendant has acknowledged the following with its current attachment (Exhibit):
(1) This issue involves Rule 15(a) of the Federal Rules of Civil Procedure which states, in relevant part, that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." Fed. R. Civ. P. 15(a). That is, a motion to dismiss is not "a responsive pleading." Centifanti v. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989) (holding that a plaintiff is entitled to amend his complaint because neither a motion to dismiss nor a motion for summary judgment is a responsive pleading under Rule 15(a)). See also Washington v. James, 782 F.2d 1143, 1138-39 (2d Cir. 1986)(stating that a party may amend the complaint while a motion to dismiss is pending); and Vernell v. united States Postal Service, 819 F.2d 108, 110 (5th Cir. 1987)(noting that "[a] motion to dismiss is not a responsive pleading and therefore does not extinguish the right to amend an initial pleading").
(2) The defendant's Motion to Dismiss failed to make any substantive argument and addressed only the original complaint (no answer to the Amended Complaint was filed).
(3) The Western District Federal court at Docket No. 03-cv-1400 has disregard legal precedent. That is, the Western District on at least four other occasions followed Gonzalez v. Paine, Webber, Jackson & Curtis, Inc., 493 F. Supp. 499, 501 (S.D. N.Y. 1980) and Taylor v. Abate, 1995 WL 362488 (E.D. N.Y. June 8, 1995) (stating that a motion to dismiss is mooted upon the filing of an amended complaint). See: Harford County v. Mid-State Bank and Trust, Docket No. 98-817 (West. Dist. Pa. Sept. 23, 1998); Ceiriog Hughes v. Halbach & Braun Industries, LTD, et al., Docket No. 97-1348 (West. Dist. Pa. March 3, 1998); Allegheny Environmental Action, Coalition, et al., v. Westinghouse Electric Corporation, et al., Docket No. 96-2178 (West. Dist. Pa. June 5, 1997); and Christopher Allen M.D., et al., v. Washington Hospital, et al., Docket No. 96-1950 (West. Dist. Pa. Feb. 20. 1997).
III. PLAINTIFF'S BURDEN
To recover on a guaranty of non-discriminatory instruction, the plaintiff must establish that he is the holder and owner of the guaranty, and that relief is due and owing on the guaranty. At issue therefore is the plaintiff's 42 U.S.C. Section 1981 claim.
Again note: The defendant failed to raise any available defense. That is, they failed to file an Answer to the Amended Complaint, and with one lone sentence (page 15) of their 25 page original argument they acknowledged the claim but failed to identify a defense.
As amended by the Civil Rights Act of 1991, Section 1981 provides:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right... to make and enforce contracts... and to the full and equal benefit of all laws... as is enjoyed by white citizens...
(b) "Make and enforce contracts" defined
For the purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
c) Protection against impairment
The rights protected by this section are protected by non-government discrimination and impairment under the color of state law.
IV. PLAINTIFF'S UNDISPUTED CASE
(PROVED WITHOUT GENUINE AND MATERIAL DISPUTE)
The elements of a Section 1981 claim are: (1) the plaintiff is a member of a racial minority; (2) the defendant had the intent to discriminate on the basis of race; and (3) the act of discrimination concerned one or more of the activities enumerated in the statute. See Main v. Conaldson Lufkin & Genrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994).
The first element of a Section 1981 claim is present; plaintiff alleges he is an African American. See Paragraph 11 Amended Complaint.
The second element is additionally present:
(1) He made application in Fall of 2000 to the defendant online law school, scored 14 of 15 correct on the entrance examination, passed the "psychological testing," and was advised by a decision maker, Matt McClanahann (Director of Enrollment) that he was "accepted for an October 2000 start as a third-year transfer student." See Paragraph 12 Amended Complaint.
(2) Soon thereafter, he received notice from the Administrative office (Matt McClanahann Director of Enrollment) that the law school "changed its mind." That is, the defendant law school communicated specifically "race (African American) didn't meet the planned demographics the administrative office wanted for the inaugural group of students." See Paragraph 13 Amended Complaint.
(3) The "change of mind" party-opponent admission was also communicated to a third party. See attached affidavit. See also Fed. R. Evid. 801(d)(2)(A). That is, under Rule 801 (n1), an out-of-court declaration is admissible against a party opponent if the declarant was an employee of the party, he made the statement while so employed and it concerned a matter within the declarant's employment. See Paragraph 14 Amended Complaint. And, because the statement was made by an individual in a management/supervisory position as part of his responsibility as liaison between the administration, tech folks, and the students (to "oversee what was done"), is an admission as to the corporate culture in which the decision to deny plaintiff the ability to make, perform, enforce, modify or terminate an educational contract (ability to enjoy the fruits of a contractual relationship) was made. See Fed. R. Evid. 801(d)(A).
Allegations sufficient to support the third element are also present. That is, the online law school denied him the right to "make and enforce" a contract because his race didn't meet the demographic the planned for the inaugural group of students. See affidavit attached to motion for Summary judgment. See also Paragraph 13 Amended Complaint.
Both the plaintiff and the defendant has introduced evidence demonstrating that the defendant:
(a) added an ex post facto attendance policy in October 2001 that directly impacted the plaintiff third-year of law study, but didn't apply to the third year of law study of non black comparators: Paula Shaver, Roberto Lee, Elazar Harel, Laura Collins, John Jascob, Farzad Naeim, Patrick T. Reilly, Sandusky Shelton, Chris Zouboulakis, and Ellen Bowden;
(b) requested a "Waiver of Maximum Clinical Hour Limit for Correspondence Law Study" that changed the 2002 fourth-year curriculum directly impacting the plaintiff (violated his State Bar of California approved study plan) but benefitted non black comparators;
(c) held a "Fourth year Forum" at the Los Angeles Marriott in October 2001 with the comparators, but didn't invite the plaintiff;
(d) offered a LEEP program and/or the mandated prerequisites for non black comparators but not the plaintiff;
(e) held alleged professor-led group chats for the 2001 Evidence course for non black comparators, but didn't invite the plaintiff
(f) retaliated against the plaintiff (12 month suspension), removal of free speech writings from a public board, refused to share test results (what was marked correct and/or incorrect), and the like;
(g) didn't adhere to the stated grievance procedure; and
(h) retaliated a second time (denied re- admission without comment).
See paragraphs 19 through 42 Amended Complaint. See also Defendant's Exhibit "E" of the Memorandum Supporting the "pre-amended complaint" Motion to Dismiss, i.e., OCR Report.
V. ARGUMENT
The defendant failed to file an Answer to the Amended Complaint and thus have not presented even a facially meritorious defense. Because of the defendant's failure to file an Answer (waiver of a defense), the court must accept as true the undisputed evidence that the plaintiff has provided in its Amended Complaint.
The plaintiff has unequivocally proved without any genuine and material dispute from the defendant, each of the essential elements for his 42 U.S.C. Section 1981 claim.
In regards to the "racial animus" link to the separate and unequal treatment that followed the Director of Enrollment's racial comments, the Third Circuit has held "that discriminatory comments by non-decisionmakers, or statements temporally remote from the decision at issue, may properly be used to build a circumstantial case of discrimination." Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). That is, unequivocally the discriminatory (separate and unequal) treatment that followed the Director of Enrollment's statements goes much further than "a failure to notify a student of certain instructional programs," as suggested by the court.
That is, the Director of Enrollment's undisputed "racial animus" proves a circumstantial case of discrimination (defendant created conditions that were not equal to that afforded the non black comparators: Paula Shaver, Roberto Lee, Elazar Harel, Laura Collins, John Jascob, Farzad Naeim, Patrick T. Reilly, Sandusky Shelton, Chris Zouboulakis, and Ellen Bowden). See paragraphs 19 through 42 Amended Complaint. See also Defendant's Exhibit "E" of the Memorandum Supporting the "pre-amended complaint" Motion to Dismiss, i.e., OCR Report.
Because Mr. McClanahann's statement(s) haven't been disputed by the defendant, the court must find "no genuine and material dispute" of the essential elements of the 42 U.S.C. Section 1981 claim See also Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir. 1993) (court may consider as circumstantial evidence the atmosphere in which the company made its employment decisions); Roebuck v. Drexel Univ., 852 F. 2d 715, 733 (3d Cir. 1988)(discriminatory remarks of University President admissible since he had a significant influence on the attitudes and procedures of decisionmakers).
VI. CONCLUSION
1. The plaintiff has complied with the Court's instruction (see October 5, 2004 order). He has requested relevant information.
2. Discovery rules are to be construed liberally in favor of the party seeking discovery. Hickman v. Taylor, 329 U.S. 495 (1947).
3. Generally, discovery will be permitted "unless it is clear that the information sought can have no possible bearing upon the subject matter..." LaChemie Lacoste v. Alligator Company, Inc., 60 F.R.D. 164, 171 (D.Del. 1973).
4. In light of the averments of the Amended Complaint and the defendant's own Exhibits (Exhibit "A" attached to the discovery response and Exhibit "E" of the Memorandum Supporting the "pre-amended complaint" Motion to Dismiss, i.e., OCR Report), discovery must be granted.
5. In the alternative, the plaintiff's Motion for Summary Judgment should be granted.
In conclusion, Kaplan Executives also lied to the court (filed false affidavits claiming no Title IV funding) to avoid constitutional claims that they couldn't defend.....
Brad, OOC, why would you cut and paste all of Josh's post and add so little to it yourself, instead of just linking to it, recommending your readers go read it, and let him get some additional ad revenue?
Just curious.
Posted by: Frank at October 23, 2004 11:27 AMI agree with Howard, as often. I think that the problem lies in interference from high management. Conservative pressure might be resisted if upper management didn't have, for example, a low-tax agenda.
The fatheads who realize there's a problem don't realize what it is. Their inflated incomes come from the fact that doing a job the big guys. Not from professionalism. We're at a point where monetary success is often evidence against someone's professionalism, rather than evidence for it. Careerism vs. professionalism.
Another factor is that the middle is empty. The moderate Republicans are cowering lackeys. There's a tremendous, dense, relentless mass on the right which has no interest in making any compromises. They have destroyed the moderate Republicans and, by and large, the liberal Democrats. The centrist Democrats are next.
Cronkite et al existed in an era when a middle could be found.
Posted by: Zizka at October 23, 2004 11:35 AMFrank: Brad has strong feelings about link rot. I agree with him. I've often linked to important thngs that disappeared later.
Posted by: Zizka at October 23, 2004 11:37 AMSince when was "speculative" intelligence not sufficient for Dick Cheney to act on??
Posted by: Grumpy at October 23, 2004 11:48 AMThere's also a complete lack of understanding of the situation in Afghanistan. Afghanistan is not a "failed state" or an "underdeveloped country". It is a "tribal region", which is something entirely different. Throughout history, Afghanistan has been run by exactly the same kinds of tribal warlords we see today.
The "politics" of a region like this is a complex ballet of interlocking and ever- changing alliances. The warlords have to fight to honor their commitments, but they don't want to "close doors" to today's enemies. After all, they might get a better deal tomorrow from those same enemies.
Capturing bin Laden would close too many doors to his supporters in the region.
Throughout the messes in both Afghanistan and Iraq, our military and political leaders have insisted on treating the whole thing like a traditional European war; the governments of the nation- states involved field professional (or professionally led) armies. The armies find a big field somewhere and duke it out. Last one standing wins. Alternative is "capture the flag"; fighting continues until one side occupies the other's capitol. Needless to say, this isn't within hollering distance of what's actually going on.
Faith- based leadership. Feh.
Posted by: lightning at October 23, 2004 11:54 AMThe press lets them get away with it? How about, th e press aids and abets?
Check out this Saturday's Daily Howler. Koppel lets a Swift Boat Liar do his thing completely unchallenged on his show. Never follows up on subsequent shows with any kind of fact checking.
But he does follow up to assure everyone that it WASNT a Swift Boat Liar that went to Vietnam looking for dirt on Kerry. What a great servant of the public trust.
Posted by: Alan at October 23, 2004 12:39 PMI used to have some respect for Ted Koppel, it's gone. I never had any real respect for Brokaw, Jennings or Rather, so I'm not surprised that they have failed so dismally.
The Daily Mislead reports that, "A new study by the Program on International Policy Attitudes (PIPA) shows that supporters of President Bush hold wildly inaccurate views about the world. For example, 'a large majority [72 percent] of Bush supporters believe that before the war Iraq had weapons of mass destruction.' . . .
"Most Bush supporters [57 percent] also believe that the recently released report by Charles Duelfer, the administration's hand-picked weapons inspector, concluded Iraq either had WMD or a major program for developing them . . . According to the study, 75 percent Bush supporters also believe 'Iraq was providing substantial support to al Qaeda' [and] Most Bush supporters [55 percent] believe that was the conclusion of the 9/11 commission".
It looks like fooling some of the people all of the time might be all they need.
Posted by: Steve at October 23, 2004 02:00 PMWow, people who no doubt voted for Bill Clinton saying we are *now* ruled by liars. That takes chutzpah!
Posted by: Chicago Boy at October 23, 2004 03:28 PMWow,people who no doubt worked themselves up into spit flying frenzies over Bill Clintons white lies about sex now condone much worse lies from their side while 19 year olds are dying in the desert . That takes chutzpah!
Posted by: snotnose at October 23, 2004 04:08 PMProf. DeLong, after the return of supply side economics in Bush II, how can one ask the question?
These people lie because it earns them lots of money. Plus, since there's no functioning journalism to expose them, it's recreational.
Posted by: Charles at October 23, 2004 04:17 PM"the exceptional laziness of the modern media. It takes no time at all with the tools of the internet to research many matters, but if our solons of the media don't hear something from a "source," they don't bother to dig into it at all...." (Howard, above)
We might suggest that editors reconfigure their op-ed assignments, to take advantage of the availability of so much more hard data and fact-checking on the internet. A sort of "Review of Issues through the Blogs" or something. Or turn it around, and invite learned topic bloggers to form ongoing rooms of substance and good craft.
Posted by: Lee A. at October 23, 2004 04:38 PMYou might need a 24-hr. staff of interns to delete responses which do not speak to purpose, or that use infelicitous vulgarity
Posted by: Lee A. at October 23, 2004 04:45 PMSo they lied, so what else is new.
Posted by: old ari at October 23, 2004 05:39 PMWell, Franks isn't as golden as he is fronted up to be. As for the coverage of the Tora Bora fiasco, we will have to make that ourselves - by posting, writing letters, calling in to shows, etc.
Posted by: Neil' at October 23, 2004 06:08 PMIs it laziness, or is it rational for the news media to invest the little effort that they do, when "sources" are willing to call them up and feed them crap? How much more does it cost to have reporters who are actually out there looking for stories? Quite a bit, I'd guess. How many consumers would notice the difference? Many, surely, but on the margin enough of them to recoup the marginal costs? I doubt it. Before we condemn the media for their laziness, perhaps we ought to consider the possibility that they are responding rationally to the context in which they find themselves.
Posted by: Tyrone Slothrop at October 23, 2004 09:09 PMTyrone, you sure as shit make rationality look totally useless with what you said.
If you were trying to be funny, or if you actually think that rationality is a flawed concept, cool.
Posted by: Zizka at October 23, 2004 10:35 PM