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Monthly Archive for July, 2008

go jamie!

Another Blow To Justice

By Jamie Gorelick
Tuesday, July 29, 2008; A17

Another stunning report has documented the bold and illegal influence of
politics at the Justice Department over the past eight years. For decades,
Republican and Democratic attorneys general had protected from political
influence the hiring of career prosecutors and administrative judges. There
was an unbroken rule, embodied in law, regulation and department policy,
that no political questions would be asked of those who wanted to serve in
career — as opposed to political — positions in the department. We
demanded of our Justice Department, in its core prosecutorial and
adjudicative functions, that it be separate from politics. Until the Bush

Last month, we learned that political functionaries deputized by Attorneys
General John Ashcroft and Alberto Gonzales had screened the best and the
brightest coming out of law schools, judicial clerkships and other positions
to weed out those who appeared to be Democrats or who might hold liberal
ideas; favor was shown to Republicans, members of the Federalist Society,
and those considered to be good and loyal conservatives. As the department’s
inspector general and its Office of Professional Responsibility noted, this
is illegal. It also breaks the promise of justice that is above politics and
undermines the department’s best values.

Now, an equally graphic report by the same two offices concludes that in
2003, the apolitical process for selecting immigration judges and
prosecutors was stood on its head. A chief aide to Attorney General Ashcroft
(and later to Attorney General Gonzales) “outlined a new process for hiring
[immigration judges] that listed the White House as the sole source for
generating candidates.”

Thus, immigration judges — who, by law, are to be chosen without regard to
their political pedigree — were no longer picked by the nonpolitical office
that is supposed to find and train the men and women who mete out justice to
tens of thousands of immigrants. In the interview files for these candidates
were such comments as “Cons[ervative] on ‘god, guns + gays’ ” — but not
much about whether they understood immigration law or had the capacity for

Even more appalling, others, including a counsel to Attorney General
Gonzales, illegally selected individual line prosecutors — who wield
tremendous power over the reputations, liberty and livelihood of
Americans — using Internet searches on such keywords as “Bush, Gore,
Republican, Democrat, Clinton, spotted owl, abortion, gay, gun, and Florida
recount” to assess their political and policy views.

Why does this matter?

In a long career counseling individuals being investigated by the Justice
Department, I have had to explain to sometimes cynical citizens that
politics are prohibited from influencing such inquiries. My ability to give
that assurance has hinged on both the public perception — and reality —
that the career assistant U.S. attorneys, line prosecutors and lawyers who
work at the department are picked on their merits and proceed without regard
to politics.

Until now.

During the Bush administration, we have seen U.S. attorneys fired under
circumstances that have led many to conclude they paid the price because
they wouldn’t prosecute Democrats; honors program applicants screened for
their political leanings; and now the process of hiring line prosecutors and
immigration judges similarly politicized. How do we reassure the American
people that justice is being meted out fairly? Trust and respect lost are
hard to win back.

Worse, the reports lay out evidence that the political appointees behind
many of these missteps knew that what they were doing was wrong.

But responsibility does not end there. The department’s senior leadership
turned over hiring decisions to people with no history and no understanding
of the institution, people who came from the Republican National Committee
or White House political functions. The predictable result was that the
department would have, in essence, political appointees in career positions.
Thus was the department’s fundamental promise to the American people —
which had been respected for decades — broken.

Where were the career people on whom we count to keep the department honest?
The latest report concludes that the two most senior people responsible for
protecting immigration judges from political influence had “sufficient
evidence . . . to have realized that political or ideological affiliations
played a role” and that they should have spoken up to others who could do
something. The same criticism was leveled at those who ran the office
overseeing the honors program and lateral hiring. Where were they? It is
disappointing that they failed to act forcefully to protect the department
they served.

Attorney General Michael Mukasey, himself a former career prosecutor and
judge, pledges to fix these problems going forward. But more is required.
The department needs to hold individuals responsible for their actions. It
needs to offer opportunities to those who were improperly denied them. And
it needs to make sure that this never happens again. Restoring the promise
of unbiased justice will take the efforts of both this attorney general and
his successors.

The writer, a deputy attorney general in the Clinton administration, is a
partner at WilmerHale in Washington.

obama internet platform

[kml_flashembed movie="" width="425" height="350" wmode="transparent" /]

draft lessig
to be chairman of the fcc

put the net in the hands of people who love it

Forwarded conversation
Subject: obama platform

From: Charles Nesson
Date: Sat, Jul 26, 2008 at 9:44 AM
To: Lawrence Lessig

on monday night (july 28) i am hosting a Listen to America platform meeting on Internet Democracy and Education.
where better to start than with your thought. what would you say is platform number one?

From: Lawrence Lessig
Date: Sat, Jul 26, 2008 at 6:13 PM
To: Charles Nesson


From: Charles Nesson
Date: Sun, Jul 27, 2008 at 8:40 AM
To: Lawrence Lessig

you put a . after trust

trust what
trust whom
trust why

From: Lawrence Lessig
Date: Sun, Jul 27, 2008 at 7:50 PM
To: Charles Nesson

trust in the very idea of government. that differences might be differences of good faith. that agreement might be won for the right reason.

Re-Empowering Juries


CHARLES NESSON: I start from a presumption of liberty. Think of the founders of our nation. They assembled as people who had the liberty to create a government. They knew that historically all governments reflect their own self-interest and come over time to limit, if not destroy the collective power of the people. They believed that a government built of checks and balances would ensure protection of their (and our) liberty into the future.

One method for doing this was to provide that the government must present its case for taking away a citizen’s liberty to a jury of peers, and that the jury must unanimously agree to a general verdict of guilt as warrant for the State to take his liberty. The jury will endure as a bulwark so long as it decides the whole case — the law and the fact. When all other balances fail, the jury will remain as the last protection of liberty.

In a criminal prosecution the legislature must first pass a statute that defines a crime. The executive must then choose to enforce the statute by formally charging and proving a statutory violation. Finally the judiciary must oversee the trial of the charge to make sure the statute is constitutional and the process of proof completely legal. Thus the state”s claim to take the liberty of a citizen is presented to a jury of the people. WE the PEOPLE. The jury is us, so that our values of liberty and justice will be preserved into the future against the state.

I want to make a doctrinal point exposing the flaw in the legal argument used by the judiciary to take away the jury’s power to decide “the whole case, the law and the fact,” thereby reducing the jury’s role to that merely of factfinder. “Law” used in describing the jury’s role means justice in the sense of connection with the conscience of community. The judges who created the current doctrine of jury nullification read “law” to mean the formal law created by the State, e.g., legislation, common law, judicial precedent. In claiming for themselves in a dichotomy between judge and jury of “law” and “fact” the prerogative of authoritatively articulating such matters of legality they left the jury only with “fact” and took the jury’s justice function away.

The judges did this in the 19th century in dispute as to whether lawyers could continue the established practice of arguing unconstitutionality of statutes to the jury despite the trial judge’s ruling that the statute was constitutional. Judges decided that lawyers may not re-argue their legal rulings to the jury because it is the judge’s business, not the jury’s, to decide matters of law. But in every case, the ruling was based upon the judges power to decide constitutionality and other legal matters. It resolved the question insofar as it applied to constitutional matters, statutory interpretations and evidentiary rulings — matters of legality. But it did not address, nor did it justify, the claim that juries had no business deciding “law” in the more fundamental sense.

Even after the “legalities” have been articulated by the judge to the jury, the jury hears and must accept the interpretation of the law of the state that the judge puts upon it, the jury nonetheless retains the essential independent function and responsibility of deciding whether to apply the state’s law to the defendant before them. That is the jury’s constitutional function. That is its protective check and balance versus the state’s power to deprove a citizen of liberty. To take this funtion away diminishes, even obviates, the jury’s function as the last bulwark of liberty.

All right, that’s my ten minutes. I’d be delighted with any and all comments.














forward to eon


i have an idea
a story starts with isaac’s email

Forwarded conversation
Subject: gallery XIV

From: William Kerr
Date: Thu, Jul 17, 2008 at 3:41 PM
To: Charles Nesson , Isaac Meister

hi isaac –

i’m planning to get to the gallery early tomorrow morning – so feel
free to come at 10:30 or anytime after 8:30am.

…as we siad, it’d be great to have a few snippets from last night to
use in my next mass communication/press release. we’ll talk about
that tomorrow.

but the live feed is going to be simply amazing.

508.735.1016 cell

gallery director – Gallery XIV Boston
37 Thayer Street
Boston, MA 02118

(617) 482-1414
From: Isaac Meister
Date: Thu, Jul 17, 2008 at 3:47 PM
Cc: Charles Nesson

Hi Will,

Bad news on that front – the audio we captured, starting with Charlie’s speech to the camera, is unrecoverable. The incompatible mic adapter HLS media services provided didn’t do the job expected, in spite of the fact that during operation last night everything seemed to be working fine. I’m completely redoing the setup and will test every link in the chain to make sure this doesn’t happen again. If the video without audio will be of any use to you, I can of course provide you with that, but no dice aside from that.

I’ll see you tomorrow and we can test things.


Isaac Meister
+1 617 312-3262 (m)
From: William Kerr
Date: Thu, Jul 17, 2008 at 3:55 PM
To: Isaac Meister
Cc: Charles Nesson

oh well. that’s what we thought might be….

..for now, i think that video without audio will be good. just fine.
maybe there are a few particularly interesting moments? we can use
these bits to promote the channel going *LIVE* — and then we can make
some announcements for our programming for the next few weeks, at
least. i’m ready to be here all of the time…even change our summer
hours to be open at night…we’ll see what makes most sense (cents)

i’m planning to sent another communication to my list + press release
tomorrow afternon. i can announce the live show them too if it’s all
worked out.

From: Charles Nesson
Date: Thu, Jul 17, 2008 at 6:15 PM
To: Isaac Meister

isaac, please call me

when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.
From: Charles Nesson
Date: Thu, Jul 17, 2008 at 6:20 PM
To: Isaac Meister

you are kidding, right?


isaac wasn’t kidding. a mono connector from a stereo mic twisted our sound into buzz unrecoverable. ouch.

here’s audio to run as voice over.


here is audio mix thanks to wayne and a DJ friend in san francisco to run under


eager to get running

The Rhetoric Room at Gallery XIV

For most people, “Rhetoric” is synonymous with bullshit. But in classical terms it is the art of communicating effectively. Indeed, how we express our most important ideas, whether in politics, business, or everyday life, plays a critical role in shaping the world we live in. If “ideas have consequences,” as a philosopher once titled an important book about our culture, then so too do words, images and sounds have meaning. For it is rhetoric, after all, that articulates our ideas and gives them wings to fly and allows them to propagate.

The Rhetoric Room is an interactive experiment promoting various modes of effective communication about big ideas. The rhetoric used to promote them ranges from political debate to art to multi-media presentations through video, radio, music, theatre and the Internet. Our goal is to raise the level of discourse by restoring rhetoric to an honorable role in society. No bull. Please join us.

Rhetoric Room Sponsors

Global Poker Strategic Thinking Society

Schedule of Events

July 28, 2008



mark twain tells a wonderful story about poker as a game of skill, called Science_vs._Luck. here he is, front of TIME magazine. why he was ahead of his time on race. what his writing can teach America today


here the copy sits on my desk next to the screen of my machine
with a gallery of windows that open at my click



inside TIME is high rollers with poker barack and crap shooter john





Obama References Lil’ Wayne

Time | July 9, 2008 10:03 AM

kids connect with ABRAHAM_OBAMA


From: Leo Whelan

The kids have been mobilized,
and they are starting to get pretty excited.
So far I’ve brought all my older groups (about 80 kids) to see the
wall , talk about it, and start creating their own colored versions.
Check out the pic of our first batch. Much more to come: I estimate
that if I can get 130-140 pages colored back at the art room – in the
next round mixing paint – we’ll be able to create a block the size of
one of the panels. Could alternatively be made into a book version
with the images accompanied by statements, collage, other types of
reworked versions (digital)… lots of potential directions.
What’s most exciting to me is this contagious feeling of empowerment
that is growing as the kids realize the connection between making an
artistic statement and becoming involved in the political process.
Most of them are too cool to admit it yet (at least to me).
More pics and maybe video to come.


party for the poker philosopher

4:25 AM (1 hour ago) [jamal 263.JPG]

I began play yesterday with 565K chips. My girlfriend was preparing to fly out here to join me. While she was at the airport, I lost most of chips and was down to 135K. I called to warn her that there was a very real danger of my being eliminated before she arrived. She hates flying, and I didn’t want her to spend five hours on the plane each way for nothing. She still had 20 minutes before boarding, so I told her it was her call and I’d let her know if anything changed. Twenty minutes later, she sent me a text message: “On brd. I hv confidence in you. :-)”

Two days later, there are 80 players left, and I am in second place with 4,444,000 chips. We are all guaranteed $77,200. I really don’t know how I made it through the day at all, let alone with so many chips; my table was so tough, full of really solid players.

This is me with another player named Jamal, we’ve been friends since we played together two days ago. I got moved to his table at the end of the day, and we both made it through.

Thanks to everyone who’s called, written, posted, etc. to congratulate me or wish me well. I am somewhere between terrified and exhilarated.

Much love,


what kind of contest can we imagine
what topic for debate
what form for crafting how the contest comes together
will will bring BOSTON together

all politics is local
tip o’neill says so
and my senator galluccio who sponsors little league
and dimasi the speaker of our house
and our governor deval
speak for massachusetts
speak for WE the PEOPLE


look what comes in this morning’s mail


4:38 AM (9 hours ago)

Well, despite starting the day with the second largest chip stack, I ended up getting eliminated from the 2008 World Series of Poker in 35th place, winning $193,000. It’s hard to complain about that result, and if you told me a week ago that I would do so well, I would have been elated. But once we were down to 79 players and I was in such great shape, I started dreaming of the final table, so it’s a bit of disappointment. I’m sure that will pass soon, though.

Overall I made a great run, met a lot of friendly and interesting people, and had a blast. It was even more exciting to have all of you following along and cheering me on. Thanks for all your support,


PARTY on wednesday at a very cool galleryXIV in the south end where ABRAHAM OBAMA is on display. please invite all in the boston area who have been following you to come and raise a glass to andrew.

Andrew Brokos, a.k.a. Foucault, the poker philosopher, did wonderfully at World Series Of Poker. i am hosting a party to celebrate his achievement at galleryXIV 450 harrison st in the south end at 7pm on Wednesday JULY !6 2008. Please come by to see Andrew, hear his stories, experience ABRAHAM OBAMA, have drinks and party.
looking forward to seeing you then.

Charles Nesson, a.k.a. eon





exciting news. at our ABRAHAM_OBAMA party wednesday will be andrew brokos, my best living proof next to howard lederer that poker is a game of skill, known online as foucault, the poker philosopher. who is currently playing in the world series of poker. he is returning to boston on monday and will come to our party. it’s a great opportunity for us to hear his stories and celebrate his achievements at the tournament. if you know anyone who would be interested in meeting him or playing poker please invite him or her to join us at galleryXIV 450 harrison st in the south end at 7pm on Wednesday JULY !6 2008. fern and i will provide wine beer snacks. and hopefully music. please respond with thoughts suggestions contributions of any sort and please try to attend. we’ll have a lot of fun.


look what comes from andrew in the morning email