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RUSH LIMBAUGH LIVE THREAD FRIDAY AUGUST 18, 2006
Rush Limbaugh.com ^

Posted on 08/18/2006 8:47:18 AM PDT by MNJohnnie

A couple of articles why the NSA ruling by the Carter Appointee is so much garbage.

http://levin.nationalreview.com/

By Mark Levin

Judge Not

Are there no limits to which activist judges won’t go to advance their political and policy agendas? Answer: No. I wrote an entire book about it. And U.S. District Judge Anna Diggs Taylor, appointed in the twilight of the Carter administration, is the latest in a long list of disgraceful lawyers who abuse their power.

There are four things that strike me most about Taylor’s opinion. First, she grants standing to such plaintiffs as the ACLU, CAIR, Greenpeace, National Association of Criminal Defense Lawyers, Christopher Hitchens, and others, without a shred of information showing any connection between the plaintiffs’ assertions of constitutional violations and any harm to them. However, Taylor reveals herself in this excerpt from her ruling:

… [T]he court need not speculate upon the kind of activity the Plaintiffs want to engage in – they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging “actual or threatened injury” as a result of Defendants’ conduct

Taylor writes later:

Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s action in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. …

In other words, if Taylor had ruled properly and found that the Plaintiffs had no standing to bring their lawsuit, she would have denied herself the ability to strike down the NSA intercept program by throwing out the lawsuit.

Second, Taylor fails to address adequately that which has been debated here and elsewhere for months, i.e., the president’s inherent constitutional powers as commander-in-chief, and the long line of court cases (and historical evidence) related to it.

Third, in many places, the opinion reads like a political screed.

Fourth, Taylor insists on the immediate implementation of her decision, meaning that the NSA must stop intercepting enemy communications at this very moment, unless it succeeds in getting judicial relief elsewhere.

The ACLU et al have won the day, as they often do these days when they take their agenda to our courts. Forum shopping works. The judiciary does not.

The opinion is here. (H/T: Andy McCarthy)

UPDATE: This from the Justice Department: "The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal."

UPDATE II: Just to be clear, Taylor ruled that the president/NSA violated the FISA, Title III, the First and Fourth Amendments, and the Separation of Powers doctrine.


TOPICS: Extended News; News/Current Events
KEYWORDS: annadiggstaylor; rushlimbaugh; talkradio
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Amateur Hour? A judge’s first-year failing-grade opinion.

http://article.nationalreview.com/?q=OWVlOGNiZmIyMmZkYTg2OGFiYzM3ZGU4Nzc0MjFjNzQ=

The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.

We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.

Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.

Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception” to FISA’s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.

More worrisome still are the judge’s breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an “F.” Here’s one of several examples: The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is “reasonable.” Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a “domestic” program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs, such as protecting us from attack, against other constitutional interests.

Lest there be any doubt as to whether Keith supported Judge Taylor’s view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge’s missive.

Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion.

Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.

Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention:

—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context (seizure of U.S. steel mills in the face of a union strike);

—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or

—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.

Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.

Trivial Pursuit. Perhaps most disturbing about the judge’s opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal “Schoolhouse Rock” episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP “regulates.” FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.

Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge’s oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.

Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2” British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

As Judge Taylor’s new favorite justice, Robert Jackson himself, warned, the courts should not “convert the constitutional Bill of Rights into a suicide pact.” I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor’s giant step in that direction to stand.

— Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.

1 posted on 08/18/2006 8:47:19 AM PDT by MNJohnnie
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To: acsrp38; CSM; tazannie; TexasPatriot8; Chuck54; shephrd; lormand; American Quilter; Kieri; ...

Listen to Rush on Line.

http://www.jasoncann.org/radio.htm

http://radio.findanisp.com/radio-shows-on-air.php


2 posted on 08/18/2006 8:47:45 AM PDT by MNJohnnie (History shows us that if you are not willing to fight, you better be prepared to die)
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To: MNJohnnie

IB4TP


3 posted on 08/18/2006 8:47:53 AM PDT by lormand (Nuke the Islamic States, or kiss your @55 goodbye)
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To: lormand

Doh!


4 posted on 08/18/2006 8:48:08 AM PDT by lormand (Nuke the Islamic States, or kiss your @55 goodbye)
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To: lormand

You be .008


5 posted on 08/18/2006 8:48:16 AM PDT by MNJohnnie (History shows us that if you are not willing to fight, you better be prepared to die)
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To: MNJohnnie

Yhello!


6 posted on 08/18/2006 8:50:23 AM PDT by MarkLevinFan
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To: MNJohnnie

Thanks for the ping, I really needed the reminder today!


7 posted on 08/18/2006 8:51:00 AM PDT by CSM ("The fatter we get as a country the more concerned we get about smoking" - ichabod1)
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To: MNJohnnie

Morning Johnnie. TGIF.


8 posted on 08/18/2006 8:51:11 AM PDT by ChicagoConservative27
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To: MarkLevinFan

Thank me!


9 posted on 08/18/2006 8:55:08 AM PDT by ChicagoConservative27
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To: MNJohnnie

Thanks!

In the meantime

"Obama heading for Africa 'because Africa is important' "
http://www.freerepublic.com/focus/f-news/1685939/posts


let's hope he bought only a 1-way


10 posted on 08/18/2006 8:55:23 AM PDT by bwteim (bwteim: Begin With The End In Mind)
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To: MNJohnnie

Hey all!


11 posted on 08/18/2006 8:56:22 AM PDT by Sensei Ern ((This tag line intentionally left blank.))
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To: bwteim

Following in slick willie's footsteps. Travel the world at American taxpayer expense. Wonder if Osama Obama is bringing 500 people along too.


12 posted on 08/18/2006 8:56:45 AM PDT by OldFriend (I Pledge Allegiance to the Flag.....and My Heart to the Soldier Who Protects It.)
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To: MarkLevinFan

I'm Welcome.


13 posted on 08/18/2006 8:57:14 AM PDT by MNJohnnie (History shows us that if you are not willing to fight, you better be prepared to die)
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To: OldFriend

I'm sure he's going over to Africa to cure all the poverty. /s


14 posted on 08/18/2006 8:57:44 AM PDT by ChicagoConservative27
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To: MNJohnnie
Amazing stuff there MNJ it's obvious that this is nothing more than a totally biased "opinion" and I use that term loosely, from a judge who had pre determined her decision.
15 posted on 08/18/2006 8:58:58 AM PDT by rodguy911 (Support The New media, Ticket the Drive-bys, --America-The land of the Free because of the Brave-)
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To: OldFriend

Sheesh, I remember that entourage. It was in the hundreds, wasn't it.


16 posted on 08/18/2006 8:59:17 AM PDT by bwteim (bwteim: Begin With The End In Mind)
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To: bwteim
"Yo Bro! Don't you be stashing yo cash in the freezer! "

"Keep it in yo congressional office, Denny be keep'n it safe for ya there! "

17 posted on 08/18/2006 9:01:20 AM PDT by TexasCajun
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To: MNJohnnie

Morning everyone! I was almost late--just finishing my yummy waffles at the Rush Limbaugh Thread Breakfast Buffet.


18 posted on 08/18/2006 9:02:23 AM PDT by American Quilter (You can't negotiate with people who are dedicated to your destruction.)
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To: MNJohnnie

THANK GOD, FRIDAY HAS ARRIVED!

HELLO GODFATHER!


19 posted on 08/18/2006 9:04:02 AM PDT by angcat ("IF YOU DON'T STAND BEHIND OUR TROOPS, PLEASE, FEEL FREE TO STAND IN FRONT OF THEM !")
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To: MNJohnnie

Very good article. One point: the judge in question is beyond normal retirement age and received her JD in 1957. So this is not quite her first opinion, just her first national stupid one. Remember, this is the same judge who tried to hijack the UMich Law School affirmative action case so she could rule in favor of racist standards.

Just so you know she isn't a late-comer to being an awful judge, but has both practice and intent.

Impeachable is the least we should consider her.


20 posted on 08/18/2006 9:04:21 AM PDT by BelegStrongbow (www.stjosephssanford.org)
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To: bwteim

Hilary/Obama in 08 and I triple dog dare you sexist bigots to criticize anything they say or do!!!! /s


21 posted on 08/18/2006 9:04:23 AM PDT by acsrp38 (Found: WMD Saddam didn't have before he didn't have them)
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To: American Quilter

No french toast?


22 posted on 08/18/2006 9:04:50 AM PDT by ChicagoConservative27
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To: MNJohnnie
That "Amateur Hour" article is already posted on FR: Amateur Hour? A judge’s first-year failing-grade opinion
23 posted on 08/18/2006 9:05:23 AM PDT by NonValueAdded (Tom Gallagher - the anti-Crist [FL Governor, 2006 primary])
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To: MNJohnnie

Some more Carter leftovers just like Iran, which Jimmy created and founded.
The good part: this judge will not stand.
The bad part: Jimmy's Iran creation is hellfire bent on destruction.


24 posted on 08/18/2006 9:05:57 AM PDT by hermgem (The same)
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To: MNJohnnie

Morning Johnnie....this ruling highlights how insane the liberals in our judicial system have become.

This issue can only help conservatives this fall.

I especially loved the timing of the ruling!!


25 posted on 08/18/2006 9:07:49 AM PDT by A.Hun (Common sense is no longer common.)
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To: MNJohnnie

Greetings!


26 posted on 08/18/2006 9:07:53 AM PDT by RasterMaster (Winning Islamic hearts and minds.........one bullet at a time!)
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To: ChicagoConservative27
No french toast?

No, I don't care for it. But the waffles were excellent--crispy on the outside, fluffy on the inside. With real maple syrup, of course. None of that Log Cabin or Aunt Jemima stuff for me!

27 posted on 08/18/2006 9:07:54 AM PDT by American Quilter (You can't negotiate with people who are dedicated to your destruction.)
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To: TexasCajun

LOL!


28 posted on 08/18/2006 9:08:12 AM PDT by bwteim (bwteim: Begin With The End In Mind)
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To: MNJohnnie

Happy Rush Friday!


29 posted on 08/18/2006 9:09:27 AM PDT by Enterprise (Let's not enforce laws that are already on the books, let's just write new laws we won't enforce.)
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To: acsrp38

I couldn't come up with that ticket in my nightmares... thanks(:


30 posted on 08/18/2006 9:09:55 AM PDT by bwteim (bwteim: Begin With The End In Mind)
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To: RasterMaster

TGIF Raster!


31 posted on 08/18/2006 9:10:09 AM PDT by A.Hun (Common sense is no longer common.)
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To: Enterprise

Lord have mercy - Rush is starting out in full rant mode! This is goona be great!


32 posted on 08/18/2006 9:10:31 AM PDT by don-o (Proudly posting without reading the thread since 1998. (stolen from one cool dude))
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To: bwteim

President's War On Terror! Oh I'm getting mad again and it is 10 minutes into the show. STUPID STUPID.


33 posted on 08/18/2006 9:10:35 AM PDT by angcat ("IF YOU DON'T STAND BEHIND OUR TROOPS, PLEASE, FEEL FREE TO STAND IN FRONT OF THEM !")
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To: A.Hun

STOP THE TAPE!


34 posted on 08/18/2006 9:11:26 AM PDT by RasterMaster (Winning Islamic hearts and minds.........one bullet at a time!)
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To: angcat

"Struck down President Bush's Domestic Eaves Dropping Program"

He's pissed~


35 posted on 08/18/2006 9:11:49 AM PDT by bwteim (bwteim: Begin With The End In Mind)
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To: MNJohnnie
Here ... work N lurk mode ON.

OT: Apparently I'm not the only one who finds the MSM coverage of the kidnapping of two FOX employees underwhelming.
36 posted on 08/18/2006 9:11:51 AM PDT by sono ("It is foolish and wrong to mourn the men who died. Rather we should thank God that such men lived.")
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To: angcat
Bob Schaeffer is such a POS.
37 posted on 08/18/2006 9:11:56 AM PDT by ChicagoConservative27
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To: don-o
Lord have mercy - Rush is starting out in full rant mode! This is goona be great!

Yes! Go Rush! Slap those reporterettes down.

38 posted on 08/18/2006 9:12:11 AM PDT by American Quilter (You can't negotiate with people who are dedicated to your destruction.)
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To: RasterMaster

Exposing these talking points is some of the best things that Rush does!!


39 posted on 08/18/2006 9:12:20 AM PDT by don-o (Proudly posting without reading the thread since 1998. (stolen from one cool dude))
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To: RasterMaster
Hell, a little more of this, and I'm gonna blow a gasket.
40 posted on 08/18/2006 9:13:00 AM PDT by A.Hun (Common sense is no longer common.)
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To: bwteim
"Struck down President Bush's Domestic Eaves Dropping Program"

Question for the MSM: Would you all call a plane trip from Cairo to JFK a domestic flight? Just curious.

41 posted on 08/18/2006 9:13:13 AM PDT by mewzilla (Property must be secured or liberty cannot exist. John Adams)
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To: sono; MNJohnnie
I just posted the other great NRO article:

Judges, Politics, and Security

42 posted on 08/18/2006 9:13:24 AM PDT by PogySailor
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To: A.Hun

It's a joke comparing Nixon to Bush.


43 posted on 08/18/2006 9:13:34 AM PDT by ChicagoConservative27
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To: don-o
Exposing these talking points is some of the best things that Rush does!!

It's so great to know that 20 million people are listening and learning.

44 posted on 08/18/2006 9:13:37 AM PDT by American Quilter (You can't negotiate with people who are dedicated to your destruction.)
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To: MNJohnnie

We here in Atlanta missed Rush due to the braves game. I think Rush should look at the Atlanta Braves baseball schedule in the future when planning his vacation schedule. LOL!


45 posted on 08/18/2006 9:13:42 AM PDT by fkabuckeyesrule (John Conyers should stop smoking crack.)
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To: NonValueAdded
Doesn't matter if it is all ready posted. The Rush Thread is the topic here.
46 posted on 08/18/2006 9:13:42 AM PDT by MNJohnnie (History shows us that if you are not willing to fight, you better be prepared to die)
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To: sono
kidnapping of two FOX employees

That has dropped off the radar, indeed.

47 posted on 08/18/2006 9:13:43 AM PDT by don-o (Proudly posting without reading the thread since 1998. (stolen from one cool dude))
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To: A.Hun

Oh no, not Jonathan Turdley.


48 posted on 08/18/2006 9:13:50 AM PDT by Bahbah (Goldwasser, Regev and Shalit, we are praying for you...and now Steve and Olaf.)
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To: bwteim
Photobucket - Video and Image Hosting This how we are all going to end up if the Dimmies run National Security again!
49 posted on 08/18/2006 9:14:05 AM PDT by angcat ("IF YOU DON'T STAND BEHIND OUR TROOPS, PLEASE, FEEL FREE TO STAND IN FRONT OF THEM !")
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To: MNJohnnie; All

Cubicle Bound

Rush:

"Pure irresponsibility

"nothing but abject lies
"This opinion is a joke
"an utter joke
"an opinion without substance


50 posted on 08/18/2006 9:14:25 AM PDT by bwteim (bwteim: Begin With The End In Mind)
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