Jesse Lava's Blog | Obama: strategy vs. tactics »

Does the law matter? I'm torn.


I'm of three minds on investigating the Bush administration's various legal transgressions -- torture, wiretapping, politicizing the Justice Deptartment, etc.

Mind #1) Prosecute 'em. This, of course, is the only path Obama could take that wouldn't violate his oath of office to protect and defend the Constitution. It's also the most direct path to fostering justice (which I hear is important our legal system) and discouraging future officials from breaking the law. On torture, in particular, we are party to a treaty banning the practice; as Glenn Greenwald argues, the refusal to enforce that treaty would suggest that the law (and therefore democracy) is not to be taken seriously. The downside of criminal prosecutions is they would gobble up an awful lot of political capital and bandwidth, thereby compromising Obama's ability to take on other matters.

Mind #2) Do nothing and save the political capital. As I think about what I want this country to look like in four years, I'd rather have universal health care, troops out of Iraq, a sensible energy policy, and a growing economy than the satisfaction of knowing two or three Bushies are in jail or (more likely) stripped of their law licenses. True, if Obama refused to enforce the law, he himself would be breaking the law. And some would doubtless argue that I'm creating a false dichotomy; we can and should do it all. But we shouldn't underestimate the energy that would be required to actually prosecute former officials. Political capital is not in eternal supply. If Obama does this that means he won't do something else. What are we willing to give up? Part of me wants to say that Obama should go ahead and violate his oath, knowing that he'll never be held to account for it and our country has bigger fish to fry than Don Rumsfeld and Alberto Gonzales.

Mind #3) Split the difference through a "truth commission." The idea here would be to have an independent panel investigate and publicize the Bush administration's wrongdoings without there being any criminal prosecutions. This approach would bring some measure of public accountability and, in a modest way, reduce the incentive for future administrations to trample on the Constitution. (See here, e.g., starting at 4:17.)

In other words, I have no firm opinion on the issue and would consider pretty much all the arguments on the table. As it turns out, the American public is split as well between these three options, though a plurality favors criminal prosecutions -- an option that barely any prominent figures have been willing to endorse.

This post was originally published at jesselava.com


36 Comments

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For me, Mind #1 is the choice...no question. Obama can multitask. He's probably doing it right now but we're so used to watching a one trick pony we don't see it. As for political capital...he's got loads and better to spend it while he's got it because that form of money melts away fairly quickly.

Check out TheraP's blog, sorry I don't know how to give a link, but look for her essays on the DOJ. She's got some excellent information on this subject.

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Co-sign. And just click my name, then search for the blogs. :-)

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I'm becoming increasingly convinced of that, Thera. And I'll certainly be reading your blog closely. (Sorry to be so late in responding, the system was messing up before and wouldn't let me reply.)

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A poll of the American public isn't really suitable to determine how people in general feel about this.

International war crimes deserve international input. Prosecution, I trust, would be the unanimous choice.

But then, the application of justice is not anyone's choice.

Not Obama's. Not Holder's. Not anyone.

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I think this is half-right. Prosecutors always pick and choose which cases to prosecute - and the decision depends on a lot of factors.

But when the most powerful country in the world fails to prosecute blatant war crimes, then that sets a precedent that obliterates the basis of international law. And that should really be a factor that weighs much more strongly than worries about political capital, and so on.

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maybe prosecutors pick and choose but generally that employs the filter "can we get a conviction or not?"

This is different, is it not?


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I'm not in the legal business, but the impression I get is that scarcity of resources, at least, requires prioritizing certain cases or kinds of cases over others. so USDAs will have implicit directives - political in origin - on where to put emphasis or on quasi-quota-like goals to meet.

I agree that still doesn't fit the present frame quite well...

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Only 40% of Americans believe in evolution, according to a new Gallup poll.

I guess we should become fundies.

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Did anyone say we should base policy or beliefs on polling data?

(BTW, sorry to be so late in responding, the system was messing up before and wouldn't let me reply.)

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Relax, If Odumba had any intention of enforcing the law, all those felonious tax frauding criminals he paraded before us for cabinet positions would be in jail now awaiting prosecution.

They were certainly got close enough to him for the secret service to cuff if he had even a nickel's worth of respect for 'the law'.

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Hi Jesse. I do not think I have come across your work before. Several investigations are on going. Some much fruit to harvest out there.

We get a little bit of info every day. Generals and colonels getting fat pockets. Journalists being wire tapped. Cheney admitting about five felonies in swan song interviews....

I want a truth commission. I want a two thousand page study of the most felony proned administration in the history of this country.

I WANT TO KNOW WHAT HAPPENED

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Lots of people giving this lots of thought. Thats good because decisions need to be made and actions carried out.
I have commented on my own indecision every time I have seen the subject come up. Emotionally, for me, the choice is easy. Bush and a few others are responsible for crimes that have had terrible consequences and if not addressed speak poorly of the collective conscience of our country. . Put them in jail! I can reach that conclusion before a trial because I am so confident that due process would find them guilty. But wait, how long would due process take? I can only guess so I am going to say we would be facing at least five years of highly divisive investigations and trials. [Do you remember the last big illegal war our country was in?] And, since we think that, even though that would be a very high price, it is a price to we are obligated to pay because we must uphold the rule of law and confirm that nobody is above it in our system.
So, how far do we go? Do we stop with a few officials after the investigations show that many, many people at all levels and ranks have participated in actions that they knew, or should have known, were crimes and nobody is above the law. An honest and aggressive truth commission would get more of the truth from more levels than trials of our highest leaders ever could. Unless, maybe, we water board the whole bunch along with their lawyers.
An aside. I served in Vietnam. I gained a little rank because I did my job fairly well and positions opened up sickeningly and brutally fast. I did nothing that I wouldn't do again in the same circumstances except allow myself to be inducted in the first place. I never was deliberately cruel and never killed in cold blood, but I did, technically , commit war crimes. I think the only reason I would have to carry a big load of guilt through the rest of my life is if I didn't speak up now and try and prevent more of the same in the future. But, maybe I should be put in jail.
We should try to imagine the place in the future that our course our actions of today will lead us to. Imagining the future can only lead to guesses about what the future will bring but we must, or at least should, give it a try. For me it is far from as simple a thinking that putting Bush in jail will solve the war crime problem going forward.
I realize I haven't made a strong argument for anything here but possibly a shallow argument as to why people shouldn't be so convinced that starting out on a course of prosecutions is the best and only way to go forward.
As I stated before in another response, if Bush was to escape going to jail he would only be one more person among millions in our country and around the world who is capable of horrific actions, or at least the support of those actions, with no qualms, and who walks the streets and who lives in harmony with at least some other humans.
If it was my choice I would take the course that leads to corrective awareness in our country as being more beneficial than putting one more psychopath in jail while a large portion of the country has landed on the polar opposite side of that decision. But then again, I'm not certain which coarse that is.

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It's horrible to commit war crimes at the ground level, but those crimes don't take place on a wide scale if they aren't ordered from the top. What is most important is to get the people who made the decision to implement the illegal policies and then put them in motion. It is less important in my mind to find and prosecute the people on the ground because there was little, if any, real choice or decision on their parts. If we deter the initiators at the top, then we don't have people committing atrocities on the ground.

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Agreed. Those at the top. Those who designed and authorized and twisted the law into torture memos.

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Just read this Lulu. Entire books have been written about what you are writing about. In my opinion your writing is better than most of them.

Let he who is without sin.....

How many of us have written a check for more money than might have been in the bank at the time we wrote it. Some states, depending upon the amount, if they chose to prosecute, provide for five year prison sentences. Write three bad checks and you could be looking at life in prison. Don't kid yourself, we did not get to the point where one out of every one hundred adult citizens without some inmates sitting in prison on some pretty ridiculous grounds.

I do not wish to see the corporal getting five years at Abu Dhabi sp and Rummy is sipping on rum daqueries resting on half a billion dollars he made in the drug legislation that is also hurting our country.

I wont stand for that. Not any more. I'm almost ready just to hand the ball to people like you, heroes who risked their balls in wars defending our country.

At any rate my vote is still for a full investigation. Then everytime some lying repub starts telling me what a wonderful man Rummy or Cheney are, I can pull out my crib sheet and point to pages and passages in that investigation.

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Lulu, you have me thinking hard about what the United States looks like ten twenty thirty years down the line if we follow these different paths. Say we do nothing. Or we have a toothless bipartisan investigation that finds nothing because no one talks and all the e-mails are gone. In eight or twelve years we will likely have a republican administration again, and as always, it will be staffed with the second-rank people from the previous republican administration. So Doug Feith moves up to defence secretary, Yoo moves up to AG, Adlington becomes chief of staff...

Perhaps I'm exagerating - these people are to some extent tainted. But it will be some protegé of theirs who moves up, having learned the lessons of a presidency above the law. You get the picture. Look at the lessons Cheney and Rumsfeld learned from their years with Nixon...

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I don't think you're exagerating at all! Excellent points!

Even if it 20 years from now, it's quite likely the next Republican adminstration will be staffed at the top by people who were a part of the criminal syndicate during the Bush years. Many of the gang under Bush cut their teeth with Nixon after all and then went on to commit even more crimes under Reagan and Bush the first before going whole hog under W.

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Thanks for this comment, Lulu. I think it takes a lot of heart and a lot of honesty to be honest about such things.

(BTW, sorry to be so late in responding, the system was messing up before and wouldn't let me reply.)

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Would you favor a truth commission over prosecutions, or both?

(BTW, sorry to be so late in responding, the system was messing up before and wouldn't let me reply.)

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Oh no I am for both. I am for prosecutions in various districts across the country, state and federal. I am for prosecution for withholding information from Congress, for lying to Congress or investigators.

But a good investigation under one roof would not replace all other investigations. It is just that the felonious activities were so wide-spread and so blatant in some cases that we need an over view.
We do not have the Nixon tapes.

Of course, now, because of hubris really, since w did not pardon anyone, the various sides will sell books and rat on their friends and enemies. Deals will be cut. This is going to be fun to watch.

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Re Mind 2: Why do we have to choose between health care, and justice for criminals? In terms of using capital, republicans will not vote for anything that he proposes anyway (with few small exceptions that prosecuting Bush would not change).

I just don't see this as either/or, and I see letting them get away with all they've done a terrible precedent to set which would have ramifications far worse than even our misbegotten war.

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It isn't an either or proposition. The President was elected to do a job. Upholding the law of the land is a major part of it. Pursuing particular policies goals is another big part of his job. He has an obligation to do both. As our President has said numerous times: it isn't about him. So the political calculations need to take a back seat and he needs to do his best on all fronts. It isn't and should not be an option for him from either a moral or practical standpoint to simply ignore massive violations of the law such as those we're talking about that took place during Bush's years of misrule. To investigate and prosecute may compromise other political and policy priorities, but to fail to do so compromises the very content of our character as a people.

Sometimes, just sometimes, you have to do what you know is right and deal with the consequences regardless of what those consequences might be. This is something that takes real strength and real character (a quality in very short supply amongst Democrats in DC in recent times, to say nothing of the Republicans). Constructing a rationale for not doing the right thing fools no one and is simply immoral avoidance of one's obligation to the the rule of law, to justice and to civilization.

Do the deaths and all the suffering caused by the crimes of Bush and his henchmen have any meaning? Are they worth anything at all? How about the injury that is sure to take place in the future when we fail to punish those guilty of this regime's crimes? Are we so callous and so bereft of decency we will not stand up and do what justice demands in the face of this tidal wave of criminal conduct? Would it make a difference if one of the dead were your son, brother, daughter, wife, sister, mother or father? What if you had a cousin or friend among the dead, maimed or whose life and career might have been destroyed? Would that be enough to move you to seek justice? What does it take? We are not discussing an abstract set of facts, circmumstances or events after all. Many have died or been wounded and crippled numbering in the hundreds of thousands altogether. More than a handful of serious cases of corruption and illegal activity have already been discovered on the domestic front. How many Abramoffs and Cunninghams and Dusty Foggos does it take to awaken the American sense of outrage?

A truth commission is a joke and does nothing whatever to prevent further crimes of the sort committed by Bush and his criminal crew either at home or abroad. The victims who are dead, maimed, who have suffered physically and otherwise due to the criminal activity of Bush and his regime demand justice which is more than truth. We already know the truth. We know that important laws were broken by the score. We know that torture was committed by Americans and that this illegal/immoral practice was sanctioned and ordered by the President of the United States and his collaborators in crime within the upper echelons of his administration. We know that American service men and woman were required to carry out the illegal orders of these criminal conspirators. We know that domestically lawlessness and corruption was rampant in the administration and that whether it was widespread and systematic corruption at the DOJ or the Interior Department or the CIA or the DOD or the Congress that the crimes were so numerous and egregious that the integrity of our entire federal government has been compromised. We know that the criminals in the White House conspired to illegally spy on the American people as a whole. We know that they illegally and with malice aforethought, revealed the identity of a career covert agent working for central intelligence for solely political reasons. We know they have lied over and over and over about what they knew in advance of the terrorist attacks of 9/11 and that their response to the attacks, such as it was on that dark day, was thoroughly incompetent from start to finish. We know the President and his minions lied about the reasons for invading Irag in violation of international law and the UN Charter. We know that an honest reading of international law would lead us to conclude that the Iraq invasion and occupation constitutes a war of aggression which is the most serious of crimes against humanity and that all the other actions taken by our government in Iraq since are subsidiary crimes.

The list of crimes, malfeasance, corruption and immorality during the Bush years could go on for a very long time. Inasmuch as we need more truth, the only way to get at is to investigate it in the manner of any criminal investigation in a professional and objective manner. If specific crimes are found to have been committed then the guilty must come before the bar of justice and answer the charges brought. The prosecution would have the burden of proving guilt as with any other case or set of cases.

Yes, the Republicans will howl, but so what? They howl because the sun rises and sets. They howl whenever they don't get their way. They howl because howling is what they do. In what other case does the government decline prosecution because the accused simply because the perpetrator complains?

Can the vast scope and scale of these crimes even be considered in the same manner that individual instances of lawbreaking have been considered in the past? I think not. If the wanton lawlessness of Bush and his cronies is not investigated and prosecuted where appropriate then there is simply no instance in which such prosecutions will ever take place.
It is absurd to play the mental games necessary to avoid the only possible responsible, civilized, and lawful course of action which is to investigate the allegations---all of them---professionally and then proceed as with any other prosecution would proceed when warranted.

This isn't a trade off where there's no real damage done as a result of the choice. We, as a nation, will be diminished if we fail to act repsonsibly in this case and we will be unable to recover our national character from it. Failure to act will result in even worse crimes in the years to come. We barely survived this crowd of crooks. The next crowd will do us in if we don't act now as we know we should and as we know we must if we are going to be an honest nation guided by the rule of law.

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It was a dark and stormy eight years...
Agree with every word!

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hahahahahahah

I don't know. Sometimes a line just hits me. Congratulations CVille, you receive the Dayly Award to Line of the Day given to you from all of me.

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Another sense in which it isn't an either-or proposition is this. We often think of political capital like its cash for shopping - you spend it. But capital is something you Invest - it propagates itself as long as you invest it wisely.

If BO sets up an investigation with teeth - but one that is not partisan (think that Fitzgerald guy), as long as its conducted fairly, people will support it. It runs its own course, and Obama gets on with his legislative agenda.

Most of this hand-wringing seems to me to be Washington-insider-24hournewscycle-narrowminded-shortsighted silliness.

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One reason I write the occasional blog, and more often comment on someone else's, is to organize and clarify my own thoughts. Occasionally it is because I have a clear vision, in my own mind, about what is right or which is the correct course. This particular subject has me far more conflicted than most.
The US has, during the time of every single President since the cold war began, carried out torture through some of its own agencies or through foreign agencies we supported and sometimes trained. That's been pissin' me off for a long time. It was wrong for all of them. If the Presidents we happen to have liked didn't know this then they were idiots of some kind. If they did they were complicit in it. The difference lately is that Bushco has made it [almost] open policy, instituted the policy wholesale, and tried to get the American people to accept and approve that policy. It looks to me like a hell of a lot of Americans have openly embraced .the policy and I expect that they are just a small percentage of the total who have done so. That could be called a step in the wrong direction. That is the scariest thing to me. Our country might be turning in that direction as a whole, not just at the leadership level..
Now that Bush is gone I don't much care what happens to him. He is a cipher. A hollow man. Not worth the rope it would take to hang him, nor is it worth ripping the fabric of our society to do so. .
I care, as I know you do too, where our county goes from here.
The arguments are all on your side if we are talking about Bush. If it is only about justice served by punishing Bush then it is a black and white decision. If we demand retribution then we have it coming and if Bush rots in jail he certainly has it coming. The laws were just and valid and he broke them. If that is the only thing that matters then your arguments carry the day, hands down.

On the other hand, I feel our country has some real problems related to its outlook towards other countries and to people who are “others”. I think that to be the type of people we imagine ourselves to be, or hope to be, and for our country to be the kind that we want it to be, then we must address those problems. Bush was almost elected once and then installed. He showed his true colors and then was elected again. A lot of our friends and neighbors and family members have an awful lot of screwed up ideas. Maybe, like with an alcoholic for instance, it will be necessary for the country to recognize and admit to its problems so that it then has the chance and possibility to heal. For more people to see the scope and depth and criminality of the truth and therefore not be able to rationally deny it, but more importantly not “want” to deny it, might be more important and might do way more good than convicting Bush.
I want him convicted in the minds of the people, as many people as possible, not just in the courts, and I would be willing to let him live out his petty life outside of jail to have that happen. .
Bush, in a real sense, is no longer a problem but the direction of this country, a direction which it took with very little prodding, is a very real problem. The most important thing to do is to try to change that direction.. We need a national consensus that starting wars and committing torture is not just illegal, but also wrong and unacceptable and counter productive to our health, wealth, security, and to the state of our souls, if we have souls. We need a consensus that what Bush did was wrong and unacceptable. We don't have that now and it is very likely that the divide will increase if we go after Bush. I think we must go after the whole truth and expose it to the light of day so that it can be seen and accepted as the truth by all.
But I might be wrong.

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Prosecuting Bush would not tear the fabric of society. Bush's official policy of torture and barbarism is what tore the fabric of society to shreds and put us on the level of the worst totalitarians in the 20th century including the Nazi's, imperial Japan, and both the Russian and Chinese communist totalitarian dictatorships. We stooped to using the very methods we condemned all of them for using for 50 years prior to Bush's madness. His prosecution is what will mend the fabric of the nation, but not just him---all of them at the uppoer levels who were complicit need to be prosecuted. Bush is little more than a step or two ahead of Pol Pot.

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"Prosecuting Bush would not tear the fabric of society".

You make that assertion with much more apparrent conviction than I think you could support.

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You said:

For more people to see the scope and depth and criminality of the truth and therefore not be able to rationally deny it, but more importantly not “want” to deny it,Wouldn't convicting Bush be the most direct and sensible way to achieve this? I am afraid I do not follow your reasoning.

I think that right now, the American people have had to swallow a LOT of injustice and warped justice. "Two Americas," John Edwards called it, and he wasn't wrong. We see it everyday. We have become almost desensitized to it.

What Americans need to see, IMHO, is that we ARE a Nation of Law, and that no one, not even the President, is above it.


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sorry for the messed up formatting.

I will learn to use preview

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We must uphold the law! It's not this man or that man. It is that crimes cannot go unprosecuted! War crimes. We are obliged. It is our moral duty to uphold the law.

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Hear, hear, oleeb! You're on a roll! Amen!

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If times were ordinary I would favor #1. But since times are not ordinary I favor #3. What I absolutely do not favor is doing nothing. At the very least there should be an independent investigative commission, preferably bipartisan, that investigates and recommends policies and laws for the future. If high crimes are uncovered, then they should be prosecuted.

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Have to chuckle about what would we look like 10-20 years from now. How about we look at what we are right now and where we were 10-20 years ago? I do not see the US as a great country. It is my country and the country I love, but the greatness has long since vanished to some undisclosed location and when we asked what was happening our President told us to go about our business. as if our nation is not our business. isn't this supposed to be a democracy?

We act as though we could not handle prosecution and progress simultaneously. I think this Administration can and should. Afterall, they are much better organized. The leader of the Republican Party is Rush Limbaugh, after all. Which is something I will blog about tomorrow.

We would put Republicans on their heels regarding the prosecutions and have a whole lot of leverage to push forward a more progressive agenda. If we let down our guard of the laws of this land, as we have this past 8 years, it will be more difficult to revive them. If we do manage to get our nation back on track, the rest will follow.

For the people who voted for change, our determination to face the truth about the past will bode well for our future. People will have a more confidence in a strong government that stands by it's laws rather then seeing it ignore these self-inflicted wounds. We cannot bandage them until we find them.

Like DD said, if nothing comes of it by way of conviction, I WANT TO KNOW WHAT HAPPENED!!! I feel that our country has gone terribly wrong that there is an entire party who refuses to even explore whether anything was done wrong. That the matter has so little significance as to not warrant spending any time investigating. We investigated the sexual deviance of a President that harmed no one, the bathroom stance of a Senator with a wide-stance(?), but we cannot investigate the actions that have led to the deaths of a hundred thousand people, the incarceration of hundreds more without charges, and cost the treasury a trillion dollars. It must be done if we wish to be great again.

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Excellent points!

It must also be done if wish to be true to ourselves and our tradition and not be morphed into a twisted and much inferior version of ourselves from this point forward.

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Well said! And touché... sometimes hard to see what's right in front of your nose and all that.
Looking forward to tomorrows blog

Limbaugh-Wurzelbacher 2012!!

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Jesse Lava

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  • Website: www.jesselava.com
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I'm a grad student at Harvard University pursuing a dual degree in public policy and theological studies. To (help) pay the (massive) bills, I do communications consulting for progressive causes.

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