August 31, 2004
We Interrupt This Wallowing in Shallowness
. . . to tell you what I really think. Wow! Two posts in a row: I'm getting into Wonkette territory, except that I haven't mentioned K-Y yet. Oops.
Arnold I heard more than saw, and it just blows me away that someone who speaks English as a second language can do what he did tonight. I anticipate some reform soon in the rules on who can be President. The second-most-famous Austrian in history may well occupy the White House in my lifetime.
Mrs. Bush did a brilliant job, despite the fact that she's clearly more comfortable reading to fourth graders than to a bunch of delegates in Madison Square Garden. She's not a terrific speaker, and—as with her husband's problems in forming sentences—I'm not sure it's as great a disadvantage as some think: in both George and Laura people see a sort of unpolished greatness that makes them feel they are getting the genuine article. The Bushes come across as very real. And she told the two stories she needed to tell: 1) how social programs under Bush 43 underscore the "compassionate" side of his administration, and 2) the agonizing W. went through when he was making the decision to go to war.
And Mrs. Bush does one thing amazingly well: she has an infectious, piercing smile, which the makeup artist played up beautifully with bright red lipstick that matched elements in the background they provided for her speech. (Did you notice?) She is probably the third most popular first lady in recent history, right behind Jackie Kennedy and Barbara Bush. (Of course, there is Lady Bird, but I'll need someone a little older than I am to tell us how she fits in.)
I think I'd like Teresa as a person: I think she'd be interesting to know. But Laura Bush embodies certain virtues people want to see right now, and if the election were held on the basis of potential first ladies rather than their spouses, it would be a lock. I probably wouldn't bother to vote, even if I did live in a battleground state: it would be whatever is bigger than a "landslide."
Which brings me to the Bush twins. Who approved that copy? Making fun of your grandmother is one thing. Making fun of your grandmother who is a respected icon of dignity and grace is an awful idea. I hear it was supposed to be self-satire about what young troublemakers they are, but the piece of it I heard (I was making a sandwich during much of it) was awful.
However, they are so beautiful that I suspect all will be forgotten in the morning. As many have remarked, it would be a tough, tough race if this were about first daughters: those are four remarkable (and remarkable-looking) young women.
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I didn't think the girls were bad at all. I've already acknowledged elsewhere that I'm in the minority on this, but that's okay. I thought they were genuinely funny and charming, in that "We're 22 years old and completely out of our depth here" kind of way. Not
at all in that Audrey Hepburn "I'm pretending to be out of my league but in fact I have it all under control" way, but the genuine "if we have to do this for another minute, we're both going to collapse into hysterical tears" way. It was vulnerable and genuine, and I liked it.
And as for the "Sex and the City" gag... did you happen to notice that Rudy was literally doubled over laughing during the cut-away? He was having a ball with it. I think lots of others were having fun too.
What I find most interesting of all, though, is that the most vicious anti-Republican commentators are now, after two days of convention speeches, talking about these two 22-year-old girls.
Guess our party must be doing
something right.
Posted by: Jeff Harrell at August 31, 2004 11:27 PM (UAuME)
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Hm. Then it sounds like I need to see the whole thing, so I can judge the remarks I thought were dicey in context.
Posted by: Attila Girl at September 01, 2004 12:28 AM (SuJa4)
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If He Weren't So Charismatic
. . . people might notice more how genuinely funny-looking he is.
Of course, I don't think the teeth-whitening treatments are doing him any good: they just highlight his thin, red-looking lips. And then there's the matter of his hair . . .
But what an amazing speaker. Giuliani—whom I missed—couldn't have been any better.
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You can watch Rudy's speech on C-SPAN.org. I've gotta say... yeah, he was better,
even better, than Arnold.
(I mean no disrespect. I just can't spell either of their last names.)
Posted by: Jeff Harrell at August 31, 2004 11:22 PM (UAuME)
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Try "the guv" and "hizzoner." Neither of them would mind.
I can manage Giuliani most of the time, but always want to put extra consonants in Schwarzenegger.
One of those two will be President within 15 years. Of course, I'm hoping that Jeb Bush and Condi are ahead of them in line, but I'm a weirdo.
Posted by: Attila Girl at August 31, 2004 11:34 PM (SuJa4)
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Jeb Bush?!? Condi?!? You must really hate America to inflict more of same.
Posted by: littlemrmahatma at September 01, 2004 08:27 AM (BZ0tI)
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That's me. Hate America. Hate it, hate it, hate it.
Posted by: Attila Girl at September 01, 2004 12:52 PM (larLB)
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You Know . . .
He really is quite an ugly man. Is it wrong to say that? I guess it's unkind. Of course, it was unkind of him to suggest that any President—much less this one—would send young men and women into harm's way to fatten his friends' wallets.
Is that "L" for "lumpenproletariat"?
Via James, who thought Giuliani did well and McCain, less so (except for the Micheal Moore moment). But I've heard some good reviews of both speeches, so I'll have to read the transcripts and let you know what I think. (Yes, I was working all day, and had an evening commitment. This is cutting into my convention coverage, though I guess I could simply post Goldstein-style missives "from New York." Or I could buy a teensy TV and take it to work, sneaking looks at it every now and again, so I could be brilliant about it all when I get home at night.)
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I was thinking that maybe the 'L' was really an attempt to show four fingers...as in 'Four More Years!' and he just botched it on accident.
Ok, maybe not.
Posted by: King of Fools at August 31, 2004 02:39 AM (ktIW6)
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I've noticed over the years that some people who might be considered physically ugly become quite attractive upon closer acquaintance.
I suspect the opposite would be true of Michael Moore. Not just because his politics. I've also heard some nasty things about his personality.
Posted by: Kathy K at August 31, 2004 06:40 AM (AuBsr)
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He looks like Steven Spielberg with gout.
Posted by: Jeff G at August 31, 2004 01:10 PM (cGOzp)
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August 30, 2004
Oooh, nice.
Via
Stephen Malcolm Anderson, some of our fine demonstrators
strut their stuff in New York City. My favorite, like SMA's, was the People's Cube, which is far superior to the hierarchical Rubik's cube.
Karol Sheinin reports in Dean's World that WaPo actually fell for this. Cool. Shine on, you crazy diamonds.
Lenny, if you're reading this you should definitely check out Anderson's web site; you two have a few things in common.
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August 29, 2004
Stephen Green
Draws his own
election map, with his best guess on current realities. If he's right, the GOP comes in at 274 electoral votes—and the Dems bring in 264. "That's tight," he observes.
He concedes that he might be wrong in placing Nevada in the Republican camp, however.
I, on the other hand, feel that Minnesota, Wisconsin, New Hampshire, Pennsylvania, and possibly even New Mexico are likely to start blushing before the election. Which would make things, you know . . . less tight.
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Miss Attila, I don't know how this translates to the rest of the country, we here in Texas know our Dubya a little better than, say folks in Nevada, but there are a lot of Democrats here that are simply mystfied by their Party, the antics of the protesters and the vitriol from the National Dems.
The Dubya they know wasn't their choice but they were pleased with the way he worked with everyone in the legislature to move the State along.
A neighbor of mine, a lifelong yella dawg Democrat had his usual all-Dem yard signs up during Dubya's reelection for Governor, except for one sign, a Dubya one. There are a lot of Dems like that, here in Northeast Texas.
If this translates into the rest of the country it won't be nearly as close as the predictions.
Posted by: Peter at August 30, 2004 07:11 AM (b/7hi)
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That's what I'm sayin'.
Posted by: Attila Girl at August 30, 2004 11:48 PM (SuJa4)
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August 28, 2004
The Captain's Quarters
. . . tells us it's
really over, by God. Manhattan, L.A., S.F. and maybe Chicago will likely remain in Kerry's fold. Everyone else will be gone in a few weeks. There are just too many questions about Kerry's record, and the blogosphere (along with talk radio) have finally forced the Old Media to cover some of it.
The L.A. Times and The Washington Post both just ran semi-objective stories on the Swifties. There are still no good answers from the Kerry people. (And no Form 180—no document dump like Bush used against the "AWOL" charges.) Now there are reports that Kerry was present at a Vietnam Vets Against the War meeting in which the assassination of U.S. Legislators was discussed. Naturally, he didn't take that to law enforcement. I've described the Kerry implosion as "Watergate in miniature," but it's not so miniature any more: it's only that the corruption and deceitfulness of the man are being discovered before we elect him, rather than afterward.
All I can hope is that my lefty/liberal friends find some other, less-depressing way to occupy their time on November 2nd. Take that day trip: go to Descanso Gardens. Or Legoland. Hang out at the beach. But stay away from alcohol, 'cause you're going to need it the next day when all the final tallies start coming in. You might want to go to Vegas for a couple of days so you can be half in the bag and playing blackjack when the confirmation arrives that Bush will be serving a second term.
Be good to yourself: learn a new yoga pose. Buy a scented candle. Get a massage. Get your black clothes dry-cleaned, because you're going to be in mourning for a while this fall.
Game over.
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What's the deal with Kerry having to release them. Doesn't the freedom of information act allow us access to them? Apparently not or apparently not quickly. Does anyone know the answer?
Posted by: melvin toast at August 28, 2004 10:26 PM (hX+sL)
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FOIA doesn't give us everything. There are certain types of records that can only be released by the individual himself/herself. This would include any files that contain medical records. And the medical records, of course, would have details about his purple hearts that people have been arguing over.
Posted by: Attila Girl at August 28, 2004 10:34 PM (SuJa4)
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Watching the argument over The Hee-row's medals and records is a lot like back when I was in Junior High. There was a bully that decided to target me. He'd only knock me around when he had his pals with him or if there was a teacher close enough to bust me if I retailiated. I knew the fight was coming but was sure not enjoying the wait. In a ball game during PE a grounder took a funny hop and got him right in the nads. Took about three men and a building crane to straighten him up from the curled position. That felt awfully good, trouble is, it didn't solve the problem. That took another few weeks before I finally got to wade in and hurt him bad enough (while getting my hiney kicked) that, ever after, he left me alone. More than that, he moved aside when he saw me coming.
It's the same thing here, the medal controversy, the Christmas in Cambodia fairy tale, the Magic Hat, all variations of that long-ago ground ball, really fun to watch but the fight is still ahead. (did I mention how much fun it is to watch?)
The real fight, I believe, will start the day that new docmentary, Stolen Honor, airs. I can't wait. That's when we'll be rolling around gouging eyes and biting noses.
Until then, though, let's keep hitting ground balls. Maybe we'll get some more of those lovely bad hops.
Posted by: Peter at August 29, 2004 09:45 AM (b/7hi)
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Yeah, as a liberal (not Leftist) blogger, or ex-blogger, I have a feeling my drink of choice on the night of 3 Nov is going to be vodka, not champagne.
I -really- don't like Bush's attacks on the First Amendment. I'm not talking about Ashcroft, who's been doing nothing wrong that I can see, but about Bush. By this I mean: anti-flag-burning (an *essential* state's right); McCain-Feingold; the whole "under God" subversion. This nation is going to become a lot less democratic in the next four years.
But the alternative is Kerry. And Kerry was on the side of evil in the Cold War. Don't forget it. Many members of my family got purged from the Ukraine by Stalin. I can't forgive Kerry for siding with Stalin's acolytes in Viet Nam. How can I? He's never asked for forgiveness.
Imagine if some anti-anti-Nazi propagandist like Charles Lindbergh had got the nod to run against LBJ in 1964.
Posted by: David Ross at August 29, 2004 01:43 PM (61aGv)
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"Under God subversion"? Take a chill pill. What did the president do to keep "God" in the pledge? Right, nothing. You see, we have a "court" system that turned down the request to take it out. Pres, and even congress, had nothing to do with it (they put it in, but that was some 40 years ago). They put "In God We Trust" on the money as well back in the 20s. That certainly is taking away some free speech of someone.
FYI, kids can decline to say the pledge.
If you're trying to get the word "God" removed from all public utterances, the commies were especially good at that.
McCain-Feingold - I'm with you there, but it seems to be collapsing under it's own weight, and it certainly hasn't prevented me from expressing my opinion.
Posted by: whatever at August 29, 2004 08:55 PM (xrLDf)
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As so often, we'll need to reform the reforms. McCain-Feingold is not long for this world, in its present form.
Posted by: Attila Girl at August 29, 2004 11:15 PM (SuJa4)
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"it's only that the corruption and deceitfulness of the man are being discovered before we elect him, rather than afterward." like with Bush...
Surely America can do better than Kerry or Bush.
Posted by: littlemrmahatma at August 30, 2004 08:23 AM (BZ0tI)
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I have so many arguments with Bush. And yet, he seems to be the man for the times. I'd even say he's wrong about more things than he's right about--but the ones he's right about are the big issues.
Mr. Jackson, thank you so much! Stop in any time!
Posted by: Attila Girl at August 30, 2004 11:52 PM (SuJa4)
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I mean, Dr. Jackson. It's late, and I'm tired.
Posted by: Attila Girl at August 30, 2004 11:53 PM (SuJa4)
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I don't know about you all, but I have never burned a flag, and see no reason to do so. Nevertheless, the day that
flag burning becomes illegal, I will burn a flag in protest.
Posted by: flag burning at December 13, 2004 06:48 PM (VTju5)
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Texas Intuition
Jimmy Carter might have been our most intelligent President. And Bill Clinton, the craftiest. But George W. Bush is just plain
smart.
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Don't confuse smart with well-scripted...
Posted by: littlemrmahatma at August 30, 2004 08:21 AM (BZ0tI)
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There is that eternal question: how can someone be so diabolical and clever, and yet stupid at the same time.
This is one of life's mysteries.
Happy birthday!
Posted by: Attila Girl at August 30, 2004 06:56 PM (SuJa4)
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Can You Handle the Truth?
A Vietnam vet—former Marine Peter W. Davis of Wills Point, Texas—wrote a comment
here that I felt deserved its own post:
This Viet Nam vet is minimally interested in The Hee-row's exploits, whatever they really were, in Viet Nam. What interests me is how, after having run for office as a war hero, and lost, he gathered a bunch of 'veterans,' many of whom never wore Uncle's suit at all--many others not having set foot in Southeast Asia--and used their 'experiences' to go before a United States Senate Committee and slime every other man that served. Including the dead.
I'm no more a hero than I am a war criminal. I'm just a guy who wore a uniform and did a job that most people wouldn't. My war had far more to do with loneliness, homesickness, exhaustion and fear than John Wayne-style shooting of some big machine gun from the hip. Yet I served alongside some genuine heroes. A whole lot of them traded their jungle ripstops in and came home wearing shiny aluminum boxes.
John Kerry slimed the names of those men with lies. He deliberately, for political gain, harmed some 58,000 families. He may as well have gone to those 58,000 homes and pissed on every one of those neatly-folded flags. Now he's returned to those homes and is parading around wrapped in those same flags.
I do not consider myself fit to speak for those men; there are others with far more right to do so. Compared to some of the men who are speaking out I can stand in the shade of a dime, comfortably, at high noon. There is, however, one man next to whom I consider myself infinitely more qualified to speak of my comrades: John Kerry. Unlike him I've never slimed them. He is not fit to speak of those men, much less speak for them.
Thank you, Peter, for your four years of service. Thank you for sharing your perspective with us now. If anyone's right of free speech is endowed by the Creator, it is yours.
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Emperor Misha
Manages to put together a
tight, disciplined rant on the subject of . . . John Kerry's Excellent Adventure in Vietnam.
A couple of you guys should probably take a pass on this. The others—go check it out.
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Don't forget to put that "h" in front of the link! Otherwise you end up in his FTP directory.
Posted by: David Ross at August 29, 2004 01:49 PM (61aGv)
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I don't know what you're talking about; you must have done something wrong
Posted by: Attila Girl at August 29, 2004 11:59 PM (SuJa4)
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August 27, 2004
Scott Ott
. . . declares the November election a
"one man race."
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Yeah, it's funny and all, but as far as I can tell it's also completely true.
This is a completely different kind of thing, of course, but I'm reminded of the article in The Onion about God's post-9/11 press conference. (No link, because archives are available only to paying customers, and I'm desperately poor.) It was satire, yes, but it was also steeped in essential truth.
Posted by: Jeff Harrell at August 27, 2004 09:49 AM (UAuME)
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Was that the one where He started cussing, wondering how He was going to get through to people that "murder is wrong, just don't fucking do it"?
That was hilarious.
Posted by: Attila Girl at August 27, 2004 12:37 PM (SuJa4)
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I'm still voting against Bush. Although I'm glad he's started to think about a vision for the future. I wonder how he plans to handle Iraq.
Posted by: David Weisman at August 27, 2004 05:36 PM (1VPIi)
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August 26, 2004
R-E-S-P-E-C-T
Desert Cat reports that some in the Kerry camp are threatening to sue anyone who posts this:
It is, of course, the cover of Kerry's book. It's also a parody of this picture, of Marines raising the American flag at Iwo Jima:
Won't Kerry be a busy boy?—he'll have to file suit against the entire internet.
UPDATE: Here's the skinny on the threatened lawsuit.
UPDATE 2: Bill gives you access to the rest of the book. (Via Protein Wisdom.)
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I wish I could find the source of that story (lost it somewhere) so I didn't have to say "rumor has it".
He'll have his hands full, no doubt.
Posted by: Desert Cat at August 27, 2004 07:53 AM (c8BHE)
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How do you think he's going to feel about someone posting the
entire text as pdf files?
Posted by: Stephen Macklin at August 27, 2004 01:29 PM (U3CvV)
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Like Michael Moore, probably pretty good if the message gets across.
Hey, download the pdfs and read the darn things!
Ooops, sorry, Bushies don't read...
Posted by: littlemrmahatma at August 27, 2004 03:10 PM (BZ0tI)
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If he was all that interested in getting this message out he would have allowed the book reprinted.
Posted by: Stephen Macklin at August 27, 2004 03:23 PM (U3CvV)
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I'm not a copyright lawyer, but if this isn't a clear-cut example of fair use, I don't know what is.
Posted by: Xrlq at August 27, 2004 03:58 PM (ARMDq)
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Little mahatma boy, you're a pathetic little snipe, aren't you?
Posted by: Desert Cat at August 27, 2004 05:25 PM (uQ2sq)
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Hey! No personal attacks!
(Mr. M gets a special allowance for snarky remarks, though he needs to confine his barbs to me, rather than extend them by implication to any of my readers. Besides, I know that he knows some Bush supporters read--and write--just as well as he programs computers. Though no one on God's green earth can spell as well as he can.)
Now let's keep it civil, here. If a
real troll shows up, you can let 'em have it.
Posted by: Attila Girl at August 27, 2004 06:40 PM (SuJa4)
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My apologies. Claws resheathed.
Though I'm surprised, as this is the first time I've seen a site owner protect an (apparent) troll from other readers...**confused**
I'm glad I didn't say everything I had a mind to...
Posted by: Desert Cat at August 27, 2004 09:16 PM (c8BHE)
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Thank you for being a gentleman, DC. I've now attempted to clarify my commenting policy on a separate post.
Posted by: Attila Girl at August 28, 2004 01:07 AM (SuJa4)
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Does anyone know who owns the copyright to the book?
Posted by: Interested-Participant at August 28, 2004 11:53 AM (lJsR5)
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My understanding is that it was Kerry's decision not to re-issue the book, so I guess I had the impression that he controlled the rights to it.
The issue with the cover is separate, because supposedly the photo is copyrighted separately by the photographer. But I'm having trouble seeing how an image of a book cover can be anything but "fair use." Of course, in this particular case (my case), it's that and more--it's political speech.
Posted by: Attila Girl at August 28, 2004 12:24 PM (SuJa4)
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Bushies do read. This one reads, on lline, the 9-11 Commission report, the Senate select committee on intelligence report, the Congressional Budget Office Report on the effects of the tax cuts, the DoD reports on abuse of prosoners and detainees, to name a few. What has struck me has been the astonishing discontinuity between what those documents actually said, and what conclusions were drawn from them by NPR, the New York Times, Washington Post, et al. I am a recovering Democrat, who broke free in response to the dishonesty of my (former) party after the 2000 elections. They demanded more recounts in four counties in Florida, counties run by Democrats,because these Democrats, who were the election officials had (allegedly) turned away Black voters. Even if Dems did turn away Blacks (who voted in record numbers BTW), recounts of ballots actually cast would not right that wrong. I've been a Democrat election official myself, and while space does not permit me to elaborate, I learned enough about the details of administring elections to know that what they were saying could not possibly have been true.
Posted by: Michael Adams at August 28, 2004 04:40 PM (phhkG)
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As an "outlaw" copyright lawyer(i.e., one who devotes his time to defending unauthorized use of material and who wants to completely overhaul and reform the current system of intellectual property from the top down), I can speak to the issue a bit (though obviously one doesn't need to be a lawyer to have an opinion on what the law
should be.).
Although lawyers would like to tell you that there is an "objective" 4 part test to determine if something is fair use, in fact the 4 part test is entirely flexible and is often twisted and used simply to justify an pre-determined conclusion that a judge has already made.
IÂ’ll give you an example. The 4-part test considers the following non-exclusive factors:
1. The purpose and character of the use of the copyrighted material (i.e., for profit vs. non-profit or educational use);
2. The nature of the copyrighted work itself (i.e., a newspaper item vs. a mega-budget film);
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Here is an example of just how flexible this can be. Let’s say that my Sunday newspaper is 100 pages long (not an atypical length for a Sunday edition in a large city). Let’s say that I make a full copy of a single article that comprises one half of one page of that newspaper. If the court wants to find copyright infringement, it will say that I copied 100% of the work since it will consider the individual article to be a complete copyrighted work apart from the newspaper as a whole. The newspaper would simply be considered a “collective” work consisting of many individual pieces, each with their own copyright protection.
If, on the other hand, the court wants to find fair use, it will simply say that the newspaper as a whole is the work that it will judge by, and I have only copied one-half of one-percent of the work, thus allowing part 3 of the test to weigh in favor of fair use.
You see how this game is played? The cover photo for “New Soldier” is “both” a complete work that had been copied in its entirety by you as well as part of a “collective” work of a book entitled “New Soldier” that the photo is just one small piece of.
Each of the four parts of the test are equally as slippery, and then the courts don’t even consider such tests to be the exclusive criteria since they look at other “equitable considerations”. Sometimes the courts will weigh part 4 of the test more heavily than the others. Sometimes they won’t. The test doesn’t provide any objective criteria at all. It merely provides objective
sounding rhetoric that allows courts to justify any personal policy decision that they come up with.
Since the fair use test is flexible, it is always impossible to say for sure if something is fair use or not until the issue has been litigated and a judge makes a ruling on the matter. Since litigation costs both time and money, this “flexibility” of the fair use test actually ends up chilling a great deal of speech by those who wish to avoid lawsuits. Even if they are confident that they would prevail in a ruling, it is the process of litigation itself that chills speech. That is why the current copyright scheme is so malicious.
But letÂ’s get to the specific example here.
First, let’s address the issue of parody. The ‘New Solder’ picture does indeed seem to be a parody of the Iwo Jima picture. There is a “parody” fair use exception to copyright. But in this instance, it wouldn’t help websites that post the New Soldier photo. The parody exception only protects the photographer who made the New Soldier cover photo vis-à-vis the copyright of the man who took the Iwo Jima picture. Yes, believe it or not, the Iwo Jima photo is itself copyrighted by the man who took that photo (or whoever he assigned it to). And as a result he has rights to make “derivate” works of his photo (It’s another very lengthy post to explain why the whole concept of “derivative” works is a sham and is simply a way to get around the notion that you aren’t supposed to copyright “ideas”, only expressions of ideas. But that is another topic altogether.). The fact of the matter is, the Iwo Jima photographer now has exclusive rights to make any new photo or creative work vaguely resembling the one he took at Iwo Jima. No other photographer or artist can do this, even if no aspect of the original photo is actually used. A “derivative” work just has to take abstract elements of the original photo (i.e., composition and position of people in relation to raising a flag) in order for it to be considered a “derivative” work.
So once again, there is a “parody” exception to the exclusive rights to create derivative works. But that only protects the person creating the parody in the first place which then gets its own separate copyright. It does not mean that anyone can take the parody work on their own and use it without the parody author’s permission simply because they wish to “endorse” the parody (I’m not sure if that was the implication on this blog by pointing out the Iwo Jima parody. But I thought this still might be an informative discussion even if that wasn’t what you were getting at.)
With the fair use test being so flexible, court precedent doesnÂ’t help much since no two cases are alike and courts can always split the finest of hairs possible in pointing out a supposed factual difference in one case versus another to reach a different conclusion.
While I share XRLQ’s opinion that your post should be considered “a clear-cut example of fair use”, the fact of the matter is that the law has been deliberately constructed in such a way that there is never any such thing as “a clear-cut example” of fair use. It is always a crap shoot at some level.
You are posting the picture in order to make a political statement of national relevance and not for profit. That should theoretically cut in your favor.
However, the copyright owner of that photo could just as easily argue that you posted the entire photo and that, in so doing, you have taken away potential market value from him/her regarding its value.
You would think that if the copyright owner had absolutely no intention of ever distributing the photo again so as to not embarrass Kerry, then the courts would disregard any discussion of market value. You would think thatÂ…but youÂ’d be wrong.
Unfortunately, there have been many examples of courts finding copyright infringement of works even though the owners have stated that they have no intention of ever distributing them again. They have also allowed for copyright infringement for works that the author never intended to publish in the first place. So again, any discussion of the fourth prong of the fair use test is a mere charade that the courts engage in.
A few prime case examples:
Worldwide Church of God vs. Philadelphia Church of God http://www.authorslawyer.com/case/227F3d1110.html
Salinger v. Random House
http://www.law.cornell.edu/copyright/cases/811_F2d_90.htm
You might also want to look at a controversial Supreme Court case called Harper Row Publishers v. Nation which held against fair use even though a magazine preemptively published a mere 300 words from President FordÂ’s 200,000 word book that was about to be published. The passage dealt with very important political events (the pardon of President Nixon) and there was no doubt a very heavy political speech component to the reasons for the copying. However the Court still found copyright infringement.
http://www.law.cornell.edu/copyright/cases/471_US_539.htm
With the test for fair use being so vague as it is applied in a practical sense, the line often gets blurred between discussions as to what I think should be fair use as a matter of personal opinion and good social policy versus what is “objectively” fair use as the courts currently see it and what the current “objective” state of the law is.
If you ask me my opinion on if it should be fair use, I’d say “Hell yes!”. If you ask me “is it fair use”, I’d say “quite possibly” or perhaps even “quite probably…but there are still some disturbing cases that you should take a look at that might suggest otherwise that would allow for a different conclusion in the hands of a talented but unscrupulous lawyer and a judge who was appointed by a Democratic President and still holds unhealthy notions of party loyolaty…”
Since there are never clear cut answers (and now even less so in the Internet age), I think its probably productive to not ask the question “Is this fair use”? Rather, you should be asking yourself, “What are the real chances of my being sued for this? And even if I get a demand letter insisting that I take it down, will I have the opportunity to decide if it is worth fighting over? Or will I likely be quickly sucked into a situation such that I will have to pay courts and lawyers money just to respond?”
Those questions will likely provide you with the real answers much more so than any questions of copyright law. (And these questions apply to your copying of the Iwo Jima photo as well since that too is likely copyrighted.)
Posted by: Justin Levine at August 29, 2004 12:14 AM (PcgQk)
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Justin:
Thanks so much for your time and input.
1) The issue of the *New Soldier* cover being a parody is not relevant to the issue at hand, for the reasons you pointed out. I only wanted to state this (and to run the two images in close proximity) so that non-military (and young) people would fully understand the intent of the book cover.
2) My perception here is that I'm on much-shakier ground legally with the Iwo Jima photo than I am with the book cover, because the book cover is political speech (and because I see a book cover as a marketing piece, and different in kind than a regular photo--common sense tells me marketing pieces get distributed more).
The Iwo Jima photo is interesting in terms of your discussion of derivative material; isn't there at least one statue that depicts the raising of that flag exactly as it occurred in that shot? As a theoretical matter, one could argue that the statue represents the Marines who raised the flag, rather than their images on film in the photo. So I could see that instance going either way--though I'm sure that the photographer was simply compensated for the image.
I think the slight chance that I'll be contacted about the Kerry cover is still much greater than the chance I'll be contacted about the Iwo Jima photo, because my intent WRT the Kerry book is critical, and my intent WRT the Iwo Jima image is to support it as a revered image in military history--essentially, to defend it against a sort of visual assault.
The Harper Row v. Nation thing strikes me as a very dodgy, scary ruling. Even if the article did come out before the book did. Scary.
Posted by: Attila Girl at August 29, 2004 11:37 AM (SuJa4)
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I'll be expecting a lawyer to deliver a lawsuit to my door any day for using the cover. No word, though, on whether my posting of the entire book will be a problem.
Posted by: physics geek at August 30, 2004 02:08 PM (Xvrs7)
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Hell, No.
Herman Jacobs wrote an excellent
piece in today's
Opinion Journal. He explores the uneasy political truce we've had in this country over the Vietnam war:
Years ago, wearied by their own arguments as much as by the arguments of their antagonists, sensible majorities of both the supporters and the opponents of the Vietnam War yielded to an unwritten domestic truce, composed of two principles:
* Those who participated in the war, with the exception of anyone at or above the rank of general officer, are entitled to public honor for their service.
* Those who actively opposed the war, with the exception of the most extreme Jane Fonda-types, are not to be branded as cowards or traitors to their country.
This uneasy truce, he argues, conceals a wound that could only be healed by a small number of people:
If a man like John McCain or Bob Kerrey were to ascend to the presidency, he might possess the moral authority to elucidate a shared communal understanding and to dispense--on behalf of all those who sacrificed--the forgiveness that would be necessary to put Vietnam behind us.
And what about John Kerry? Might he have become the man finally to bind up the wounds of Vietnam? Yes, I believe he could have performed that healing, perhaps more completely even than a John McCain or a Bob Kerrey, precisely because John Kerry was both "sinner" and "sinned against." No one could have better explained to the nation how the world looks different with the passage of time.
He could have explained that although he is remains deeply proud to have served his country in war, he is deeply sorry that in his proudly foolish youth he spoke such vile words about the other men who fought in that war, many of whom were still fighting when he dishonored them. He could have explained that there were good men and women who supported the Vietnam War and good men and women who opposed it. He could have explained that, even though he still believes he was right to oppose many things about the war, he now knows he was wrong--unequivocally wrong--to say and do the fraudulent things he said and did when he returned from Vietnam.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Yet we do not fault Mr. Kerry for failing to seek the reconciliation that history seemed to have placed uniquely within his power to achieve. In the absence of healing, the nation could have continued to observe the well-established domestic truce. We all would have been content to continue to "let it alone," just as we have done for the past 25 years.
But now we can't "let it alone." The reason we can't "let it alone" is that John Kerry won't let us "let it alone."
We can't let it alone because Mr. Kerry has pursued a strategy that sounds out old angers with a dissonant message that takes the two prongs of the domestic truce and makes them serve his own advantage. The domestic truce had required that those who served in Vietnam should receive honor. So Mr. Kerry now exalts that half of the truce--not humbly as befits a genuine war hero, but constantly and immodestly waving the bloody shirt of his Vietnam service in the faces of his critics whenever any connection, no matter how illogical, can be drawn between their criticism and Mr. Kerry's Vietnam service.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The predominant quality revealed in Mr. Kerry's spinning and unspinning his personal history in the Vietnam era is that, like everything else in his political life (from the SUVs he owns but doesn't own, to the medals he tossed but didn't toss, to the war in Iraq he supports but doesn't support), he's trying to have it both ways. But because of how the Vietnam era tore this country apart and still weighs on the nation's political soul, Mr. Kerry's trying to have it both ways about that war is so much more telling than his SUV moment or even his flip-flops on the current war.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Yes, it's true that under the strict terms of our long-standing domestic truce, John Kerry was not required to apologize for the things he said 30 years ago, even though he himself had more recently tested that truce with his attacks on George W. Bush's National Guard service. But then in January of this year, to burnish his credentials as a war president, Mr. Kerry's authorized biography reported a story implying that his Swift Boat comrades had fled the scene of an enemy attack while he alone returned to rescue the wounded. Honor being such an insignificant thing to John Kerry, he probably had no idea that--with his biography reviving war crimes accusations and, more specifically, implying cowardice on the part of his fellow Swifties--he had broken the domestic truce.
The truce is over. The Swift Vets and all the other vets John Kerry has freshly maligned are determined that this time around he is not going to have it both ways. Men like Michael Benge, Kenneth Cordier, Joseph Crecca and Jim Warner, who have already lost too many years of their lives to the Vietnam War, would have much preferred that Mr. Kerry had not restarted this fight. But now that he has, they are not going to let it alone.
It's a long piece. But I urge you to pour one more cup of coffee, get a bagel, and read the whole thing. This morning. Now. Especially if you vigorously disagree with me most of the time. Because it will help to explain to you why your sense that John Kerry is a "war hero" doesn't conform to the view of him most Vets—Vietnam vets in particular—have.
I know that some of you are afraid that because George W. Bush never "saw action," he may be casual about sending young men and women to die overseas. You are afraid that he may view their lives as cheap. But I'd like you to consider how cheap the lives of other vets appeared to a young John Kerry years ago, when he advocated that we simply withdraw, leaving the Vietnamese to their fate, and leaving our own POWs to die at the hands of their tormentors.
Please think about that.
This election is not just about Democrats versus Republicans, or whether the war in Iraq was a good idea, or how we are going to approach the issue of combatting terrorism, or how many Western European countries we need as allies.
This election is now—by Kerry's own choosing—about whether we show some respect to those who served their country 30 years ago, or continue to spit on them and call them names.
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"This election is not just about Democrats versus Republicans, or whether the war in Iraq was a good idea, or how we are going to approach the issue of combatting terrorism, or how many Western European countries we need as allies."
The election is about which candidate is best to lead the most powerful and influential country on this planet. Bush has proven himself incapable.
"This election is now?by Kerry's own choosing?about whether we show some respect to those who served their country 30 years ago, or continue to spit on them and call them names."
No, by your own choosing you keep harping on Kerry and Vietnam. You just posted below that you'd wish the topic would change. Well change it. Why don't you talk about how Bush and Kerry stand on real issues, like the Environment, the Economy - anything!
Posted by: littlemrmahatma at August 27, 2004 08:30 AM (BZ0tI)
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I'd have to decide
which of the Kerry positions on any of those issues I wanted to tackle.
Posted by: Attila Girl at August 27, 2004 12:40 PM (SuJa4)
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Whereas with Bush, he firmly sticks with his convictions (against all reason), except when pressured, then he - what's that word? - flip-flops.
Bush makes too many "mis-calculations".
Posted by: littlemrmahatma at August 27, 2004 03:13 PM (BZ0tI)
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But ya gotta admit--he sure does get misunderestimated.
Posted by: Attila Girl at August 27, 2004 04:23 PM (SuJa4)
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Mahatma dude, the topic has been Kerry's own choosing for pretty much the last year straight. (Oh and in case you didn't know yet, Kerry served in Vietnam!)
It would be nice if Kerry would start talking about the issues--that is to say, if he could figure out where he stands on them. It's what, 35 days until Election Day? What's his plan on (pick a topic)? Quick! Can you tell me? (Didn't think so.)
"I'm not Bush, and I'll do everything better!" Great platform...
You nicely embody the sudden indigestion the Demos are having over the Vietnam issue. (Tasted good going down, but turned awfully sour in the stomach...)
Posted by: Desert Cat at August 27, 2004 05:45 PM (uQ2sq)
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The Commissar
. . . gives us a short, hilarious
history of the "Massachurian Candidate," one Ivan Kerrinsky. His memories are a little spotty, but they'll do.
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Every one that is of the truth heareth my voice
Posted by: Jesus Christ at August 26, 2004 06:18 PM (soUEH)
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With traffic like that, I'll stop complaining about my Site Meter stats . . .
Posted by: Attila Girl at August 26, 2004 08:24 PM (SuJa4)
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August 25, 2004
Fisking Kerry's Bio
Malkin reprints a
letter from a Vietnam Vet who says he isn't affiliated with any 527s. He hasn't read
Unfit for Command, but he does have a thing or two to say about
Tour of Duty, and like many veterans from the Vietnam era—and from other conflicts—he has some issues with Kerry's behavior. Not to mention his command of the facts.
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This Viet Nam vet is minimally interested in The Hee-row's exploits, whatever they really were, in Viet Nam. What interests me is how, after having run for office as a war hero, and lost, he gathered a bunch of 'veterans', many of whom never wore Uncle's suit at all, many others not having set foot in Southeast Asia and used their 'experiences' to go before a United States Senate Committee and slime every other man that served. Including the dead.
I'm no more a hero than I am a war criminal. I'm just a guy who wore a uniform and did a job that most people wouldn't. My war had far more to do with lonliness, homesickness, exhaustion and fear than John Wayne shooting some big machine gun from the hip. Yet I served alongside some genuine heros. A whole lot of them traded their jungle ripstops in and came home wearing shiny aluminum boxes.
John Kerry slimed the names of those men with lies. He deliberately, for political gain, harmed some 58,000 families.
He may as well have gone to those 58,000 homes and pissed on every one of those neatly-folded flags. Now he's returned to those homes and is parading around wrapped in those same flags.
I do not consider myself fit to speak for those men, there are others with far more right to do so. Some, not nearly enough, are. Compared to some of the men speaking out I can stand in the shade of a dime, comfortably, at high noon. There is, however, one man whom I consider myself infinately more qualified to speak of my comrades, John Kerry. Unlike him I've never slimed my comrades. He is not fit to speak of those men, much less speak for them.
Posted by: Peter at August 26, 2004 10:05 PM (AaBEz)
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Seems to me your disagreement with Kerry is no so much whether he served honourably in Vietnam or not but that he had different memories of it than you did. My father was a rear-gunner in a bomber in WWII, was shot-down over Germany and spent a year in StalagLuft I. He would never speak badly about the men he served with and admired but he does speak his mind that war was hell and the politicians and generals who are so quick to send others to war should have to walk a mile in those shoes first! He admires John Kerry for speaking out when he came home... not to slander the men he served with but to expose hell for what it is. It may sometimes be necessary but make no mistake its not a political game.
Posted by: VJ at October 29, 2004 06:05 PM (fTrK/)
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Look. Either John Kerry is a war criminal, or he is a liar. Discussing atrocities one has supposedly witnessed or taken part in--and saying these are known and approved from up the chain of command--is not a small matter.
Our POWs were tortured more because of the things Kerry said. Things they themselves refused to say, even though they were tortured.
1) John Kerry wasn't there long, and he didn't see much action;
2) He was against the war before he even went, so it was not a matter of his mind being changed by that experience. He only went because he wanted to follow in the original JFK's footsteps as closely as possible.
Posted by: Attila Girl at October 31, 2004 04:29 AM (SuJa4)
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Cleland's Stunt in Crawford
This is the text of the
letter presented to Max Cleland today when he showed up at the President's ranch to engage in his little bit of political theatre:
Dear Senator Kerry,
We are pleased to welcome your campaign representatives to Texas today. We honor all our veterans, all who have worn the uniform and served our country. We also honor the military and National Guard troops serving in Iraq and Afghanistan today. We are very proud of all of them and believe they deserve our full support.
That's why so many veterans are troubled by your vote AGAINST funding for our troops in Iraq and Afghanistan, after you voted FOR sending them into battle. And that's why we are so concerned about the comments you made AFTER you came home from Vietnam. You accused your fellow veterans of terrible atrocities -- and, to this day, you have never apologized. Even last night, you claimed to be proud of your post-war condemnation of our actions.
We're proud of our service in Vietnam. We served honorably in Vietnam and we were deeply hurt and offended by your comments when you came home.
You can't have it both ways. You can't build your convention and much of your campaign around your service in Vietnam, and then try to say that only those veterans who agree with you have a right to speak up. There is no double standard for our right to free speech. We all earned it.
You said in 1992 "we do not need to divide America over who served and how." Yet you and your surrogates continue to criticize President Bush for his service as a fighter pilot in the National Guard.
We are veterans too -- and proud to support President Bush. He's been a strong leader, with a record of outstanding support for our veterans and for our troops in combat. He's made sure that our troops in combat have the equipment and support they need to accomplish their mission.
He has increased the VA health care budget more than 40% since 2001 -- in fact, during his four years in office, President Bush has increased veterans funding twice as much as the previous administration did in eight years ($22 billion over 4 years compared to $10 billion over 8.) And he's praised the service of all who served our country, including your service in Vietnam.
We urge you to condemn the double standard that you and your campaign have enforced regarding a veteran's right to openly express their feelings about your activities on return from Vietnam.
Sincerely,
Texas State Land Commissioner Jerry Patterson
Rep. Duke Cunningham
Rep. Duncan Hunter
Rep. Sam Johnson
Lt. General David Palmer
Robert O'Malley, Medal of Honor Recipient
James Fleming, Medal of Honor Recipient
Lieutenant Colonel Richard Castle (Ret.)
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Old-School News Hounds
I know that the intense left-liberal media bias is part of the reason people get their news and analysis from blogs. I really do.
But every once in a while, I wish that the mainstream guys would try to do their actual jobs.
Now, as the two tenuous connections between the Bush campaign and the Swifties melt away and I reflect on the intimate connection between the DNC and several anti-Bush 527s—along with the underlying attitude, which from the get-go has been "prove that we're in bed together," I feel wistful again, and long for real, old-fashioned journalists to do just that.
Is anyone outside the blogosphere up to the challenge?
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God, I wish. I have a good friend whom I respect a lot but who has, unfortunately, gone slowly insane over this whole thing. Earlier today he sent me a link to a CNN story about Ben Ginsberg. So I wrote back to him about Neil Reiff (the deputy chief counsel for the DNC who is also the attorney of record for Move On), and he completely failed to grasp it. Sharing a lawyer (1) doesn't mean anything at all, and (2) is something that the Democrats were doing LONG before Swift Vets ever came into existence.
Posted by: Jeff Harrell at August 25, 2004 03:50 PM (38hhz)
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Being a Democrat is one thing: not being able to see that the 527s are a bipartisan, bilateral situation is another.
It's like half the population just lost their minds. Weird.
Posted by: Attila Girl at August 25, 2004 09:59 PM (SuJa4)
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August 24, 2004
Desperation Time
James has the
skinny (via Drudge) on John Kerry's recent phone call to Robert Brent of the Swift Boat Veterans for Truth. Apparently they bunked together in Vietnam, and Brent used to put Kerry back to bed when he was sleepwalking. (James: "that's not a good thing to do in a combat zone.")
Brent, who lost two of his men in Vietnam, is as outraged as many vets at John Kerry's conduct when he came home, joined the antiwar movement, and lied about supposed "atrocities" committed by our guys in southeast Asia.
Kerry wanted to meet face-to-face, and talk about the factual dispute. Brent declined.
Had I mentioned that this election is over?
The problem here is that the Democratic Party thought they could have it both ways with Kerry: here's a guy who got decorated in Vietnam, but came back and protested the war. I suspect the reasoning was that he could appear to be all things to all people. To the antiwar crowd, he could be a peace protester. To those who are concerned about the War on Terror, he could play the war hero and look "tough."
In their attempt to have it both ways, though, they really have it neither way. Those who are infuriated by the war in Iraq are not turned on by this "reporting for duty" bullshit, and those who are very concerned about the terrorist threat—and support the action in Iraq—are nauseated by it.
There's no there there.
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Fair's fair.
Q and O
points out that it was Kerry himself who was first questioning the service record of George W. Bush, and—with an able assist from the
Wall Street Journal—quickly puts the lie to the notion that the Swift Boat Vets are out of bounds.
I'm still thrilled with the way Bush handled the calls for him to condemn the Swifties. He distanced himself from them, yet rejected the idea of a unilateral disarmament by those who support him (or at least hate Kerry), and brought up the idea that these 527s are even less accountable than the parties are, as a basis for future policy debate. (I think it's worth noting that a few of the Democratic 527s had offices right next to that of the DNC at the Democratic convention.)
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Simon Rosenberg-- the head of New Democrat Network, one of many so-called "527" organizations operating under the latest tax code--- appeared recently on C-span. Near the end of his interview he sorta inadvertantly revealed the thinking of the Democratic Party in exploiting the 527 loophole when he bemoaned the sorry state of the Party's finances and ascribed that to (you're going to LOVE this...) the strength of FOX NEWS and Rush LIMBAUGH!!!!!!!
Okay, I get it. ABC, CBS, NBC, CNN, and the largely tax-payer-funded Public Broadcasting System are unable to counter the schemes of the Vast RightWing Conspiracy. The evil Republicans have managed to compel twenty million unsuspecting citizens to chain themselves to their radios to listen to Rush, and uncounted other millions to sit in thrall to the demented rantings of Fox News, long known to be the unofficial propaganda organ of the Bush juggernaut. Fox and Rush are therefor part of the official fund-raising apparatus of the Republican Party, so they should be subject to appropriate restrictions and penalties.
Simply, the groundwork is being laid by the Democrats to compel funding for their own propaganda from the national cookie jar.
Posted by: David March at August 24, 2004 12:00 PM (wGh4c)
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Of course, as you point out that's really already happening on PBS and public radio. (I happen to have a soft spot for public radio, but it
is rather relentlessly lefty.)
Posted by: Attila Girl at August 24, 2004 12:42 PM (SuJa4)
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