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Did Zazi's Lawyer Sell Him Out to the FBI?


This story begins with two lawyers, one of the best and one of the worst, and we might as well begin the beginning with one of the best.

Jeralyn E. Merritt is a distinguished Colorado lawyer who created TalkLeft, a website devoted to discussing "the politics of crime." Ms. Merritt was one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City Bombing Case, and she has served as Secretary, Treasurer and member of the Board of Directors of the National Association of Criminal Defense Lawyers as well as on the ABA Criminal Justice Section Council and the Board of Governors of the American Board of Criminal Lawyers. Nobody questions her outstanding integrity and professional competence.

She has closely followed the case of Najibullah Zazi, who is now charged with knowingly making false statments to the FBI in a matter involving terrorism, and these charges arise entirely from statements Mr. Zazi made during a series of free-wheeling interviews with the FBI, arranged by his attorney, Arthur Folsom.

(Najibullah Zazi) told the court today he wanted to stay with Arthur Folsom, the lawyer he met for the first time on Tuesday of last week, who took him to the FBI office on Wednesday, had him waive his right to remain silent, provide fingerprint, DNA and handwriting samples and for the next three days released personal details about his client's life and activities to the media.

Folsom and the PR rep he (presumably) hired didn't stop talking until Saturday, when things went south.

As a result of the chain of events Folsom set in motion, Zazi, his father and a third man in New York are now charged with making false statements to federal officials, an offense that carries up to 8 years in prison.

And the feds have a wealth of information about Zazi, his family and a lot of other people it would have taken them months or years, if ever, to gather.

Folsom is not a federal criminal defense lawyer and he has no experience in terrorism cases. He chose a strategy for his client that has had profoundly negative consequences. Without knowing a shred of evidence the feds had compiled against his client, or even whether his 24 year old client whom he met a day earlier was telling him the truth, he trotted him down to the feds and in front of the media.

Ms. Merritt is always reluctant to criticize other lawyers, and she makes about the best defense of Arthur Folsom that I can imagine anyone making.

Folsom seems like a pleasant fellow whose heart is in the right place. But he needs to ask himself whether he has the skills and experience necessary to help his client in what promises to be a bruising battle ahead. I think he will come to the right decision.

Even with this disclaimer, Ms. Merritt's harsh presentation of how Arthur Folsom has represented his client surprised some regulars on her website.

Suffice it to say that I know I have no basis for criticizing his actual work, but I do know that you do. I also know that you are not quick to criticize anyone for anything. So your strong criticisms here are rather startling.

Ms. Merritt replied...

" I also know that you are not quick to criticize anyone for anything. " You are right, especially another lawyer and on a case in my District.

But, the lawyer had no details of the FBI's case, no deal for immunity (at least on paper which is all that counts) and only denials from his client when he chose the strategy, so that rule just doesn't apply.

When I ran into him yesterday (almost literally, the TL kid was with me, we had just finished a hearing in our case (we have different defendants), I practically collided with him in the clerk's office. He really seems like a nice guy, I almost feel sorry for him, but then I think of his client and his client's father who have been so adversely impacted by his rush-in while knowing nothing strategy.

Arthur Folsom is a nice guy! Other readers' agreed...

I have no doubt that Mr. Folsom is a good, honest and trustworthy guy, and a competent attorney within the sphere of his experience.

Arthur Folsom is "a good, honest and trustworthy guy!" No doubt!

But I doubt it.

The FBI interview's with Mr. Zazi were all-day grueling ordeals...

Zazi spent eight and a half hours answering questions Wednesday, the same day FBI agents served search warrants at his Aurora, Colo., apartment and a nearby house where his aunt, Rabia Zazi, lives. Heavily armed police believed they might find a bomb-making facility during their raids, but no such materials were discovered, authorities said.

Denver Post columnist Mike Littwin echoed Ms. Merritt's criticism of Arthur Folsom...

Folsom will be long remembered as the lawyer who allowed his client to spend 28 hours talking to the FBI without immunity, without the promise of a deal, with nothing in return. Lawyers lined up to question his wisdom and -- off the record -- his competence. If Zazi is guilty and if the FBI does break up a terror plot, Folsom might have accidentally done us a favor. But he hasn't done the justice system any favors.

You can guess why he's taken the case. Folsom's publicist said the case would "position Mr. Folsom as a premier attorney." She said Folsom was looking to "expand" his team.

After all, nobody could possibly believe Zazi is a terrorist ringleader. Let's face it, if Zazi were a mastermind, ask yourself this: Would he have hired someone out of divorce court to defend him?

The Associated Press also reported that Arthur Folsom has a minor drug charge currently pending against him...

The attorney for a Colorado man suspected of being involved in an alleged terror plot faces a marijuana possession charge in northern Colorado, but he says the drugs in question weren't his. Court records show Arthur Folsom, 37, was cited in June in Larimer County with possession of less than 1 ounce of marijuana, a petty offense that typically carries a fine of no more than $100 if convicted but no jail time.

What a "nice guy!" What a "good, honest and trustworthy guy!" The drugs weren't his! No doubt!

Meanwhile, Arthur Folsom's many publicity stunts have made Arthur Folsom and his client very famous indeed, and Time Magazine is apparently on the verge of naming Najibullah Zazi "Terrorist of the Year!"

"If Najibullah Zazi is everything the FBI says he is..." Time begins with this modest bow to presumption of innocence, but it doesn't sound as much like "presumption" as a freakishly unlikely possibility, and they quickly get down to the nitty-gritty!

The FBI is working to build a stronger case against the pair, and terrorism-related charges are expected imminently. But if it turns out the FBI's suspicions are accurate, then counterterrorism experts will be especially interested in Zazi -- not least because of his origins.

(See pictures of Osama bin Laden.)

See pictures of Osama bin Laden!

Now see pictures of Najibullah Zazi!

What next? A tour of Ground Zero for prospective jurors?

A photo-op where Arthur Folsom ties a noose around his client's neck?

All sources endlessly repeat that Arthur Folsom is just a simple DUI/divorce court attorney who has zero experience with federal law...

As if it would have been a good idea to expose a state-court client you had only met one day earlier to 28 hours of questioning, with no immunity or any other kind of deal on the table!

So it's just barely possible that Arthur Folsom is a complete barking idiot...

But it's also possible that he sold out his client to the FBI to position himself as a "premier attorney," in the words of his PR rep, Wendy Aiello, the highest profile publicist in Denver, Colorado.

The most obvious objection to this interpretation is that Mr. Folsom could have made himself just as famous for a reasonable defense of Mr. Zazi as for throwing his client to the sharks, and even though he shoved his face in front of every TV camera in Colorado, he probably also has another motive beyond fame and fortune.

Did this clown believe it was his patriotic duty to give up a client who looks like Osama bin Laden? Is there more involved in his drug-bust than "somebody left that pot on my boat?"

Who knows?

But if you believe that any lawyer with Najibullah Zazi's best interest at heart would have given him up for 28 hours of no-deal-on-the-table grilling by the FBI, you probably also believe...

It's just a coincidence that the news is full of bomb-making plots with no bombs or bomb-making equipment anywhere to be found, exactly when the Patriot Act is up for renewal.

The Bush administration periodically put the USA on high alert for terrorist attacks even though then-Homeland Security chief Tom Ridge argued there was only flimsy evidence to justify raising the threat level, Ridge now says.

But that was the Bush administration, and now everything is different! Especially the Patriot Act and the rest of the gruesome and absurd apparatus of the Global War on Terror!

This law was rushed through Congress after 9/11," House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said. When an Obama administration lawyer testified in support of extending the law as is, Conyers stopped him. "You sound like a lot of people who came over from DOJ," he said, referring to the Department of Justice under Bush.

43 Comments

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You are dead-on here Rutabaga. The divorce attorney line makes sense and Jeralyn Merritt is the best.

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Thanks, jonnie. If this diary doesn't accomplish anything else, at least you and I can agree about something, and whenever we fractious leftists can find some common ground, angels sing, bells ring, and the demons tremble!

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You've done us a great service with this blog. People need to see this.

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I have been told that you were pretty intelligent, Rutabaga. I hadn't seen evidence. So I am surprised to find that at this point I tend to agree with you.

If Jerilyn supports what you say she does, you seem to be running in the right direction here. Naturally I need independent confirmation, but it sure sounds like Folsom screwed the pooch and his client is going to suffer for it.

It's my personal opinion that the FBI is first and foremost set up to gather good public relations for the FBI to add to their budget, and they will throw anyone under the bus to get that PR. This sure sounds like their MO.

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Thanks for commenting, Richardxx, and although I appreciate your enhanced appreciation of my putative intelligence, in this case as mostly elsewhere, I just followed the lead of some indisputably intelligent people like Jeralyn Merritt, and creative researchers like readytoblowagasket, who has been trying to post a multi-linked comment on this diary, and may eventually split and post it.

Anyway, I might as well reply to gasket's comment already, since it fits in with your comment about the FBI, and also as an extra inducement for her to post it.

My brain has burned out on this case temporarily, and the only remaining issue upon which I can still focus, is...

Who suggested Folsom to Zazi?

Folsom was very good luck for the FBI, and the answer to that burning question which seems to interest everyone else... Was it a good idea for Zazi to spill his guts to the FBI?... is now obvious enough.

But how did Zazi get a lawyer like Folsom, made to order for the FBI? Reality isn't made to order for any of us, unless we make it to order, and that was what took me so long with this diary... Trying to determine if any lawyer could be as stupid as Folsom is pretending to be.

No.

So for me the critical issue here is... Did the FBI whisper in somebody's ear... some friend of Zazi's whom they were squeezing... that selling Folsom to Zazi will make you, Abdul, totally well from the "FBI disease?"

This is left very vague with all sources...."somebody" suggested Folsom, and that's usually good enough, but not for me.

If the FBI left any fingerprints on that "somebody," then the 1001 "false statement" charge against Zazi goes away, and all the fruit of that poison tree, which is to say, everything they have.

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Here I am, fwiw, although this may be old news by now.

Both Zazis are charged with lying to the government specifically in violation of 18 USC 1001.

You can violate 18 USC 1001 (and parallel state statutes) through a very wide array of false statements. The statement must be material to the issue the government is considering. But that is a very low standard — it simply means that the government must be able to show that the statement is of the sort that might possibly have an impact on the decision the government was making. Traditionally the feds used 1001 to prosecute lies that actually had an impact — false statements that led investigations astray, false statements that let a citizen collect money he wasn’t entitled to or avoid debts she was required to pay, false applications that got a citizen a passport or license or document he wasn’t entitled to, etc. But increasingly the feds use 1001 as a tax on stupid people with shitty lawyers. The government decides what the truth is. The truth is usually that you are guilty of a crime. Then they ask you to come in and answer questions. If you admit you are guilty of a crime, they are happy and charge you with a crime. If you deny that you are guilty of the crime, they charge you with lying to the government — even though they contemplated the possibility that you would do so, and even though your lie had no perceptible impact on the investigation of the matter.

That’s exactly what happened to Zazi Sr. and Zazi Jr. Read the complaints against them, which I have uploaded here and here [see original for links to affidavits]. The affidavits in support of the complaints show that the government knew what it thought the real story was before either Zazi came in for a voluntary interview. When each Zazi denied some fact about the investigation that the FBI believed it could prove, they charged them for it — even though it is perfectly clear that the alleged lie had no impact whatsoever on the investigation.

Some of us regard that as chickenshit.

Read more at this excellent blog. The analysis dovetails with Ellen's comment below, only it is specific to this case and how the FBI operates. Doesn't shed more light on Folsom, but rather makes things shadier.

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The reason I say it's old news is because Najibullah Zazi has now been indicted by a grand jury.

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Some news never gets old, and the new news about Zazi's indictment still depends on the old news about his 28 hours of testimony to the FBI.

"Hey guys, if you look in this email here, you'll discover my plans to make bombs!"

Is Zazi supposed to be so retarded that he convicted himself when the FBI had nothing?

Who could believe that this moron was much of a threat?

Mohammed Atta, for example, had advanced degrees in both engineering and architecture. Zazi drives a van and shows the FBI his "bomber emails."

But if Zazi isn't a complete moron, it's still possible that he was diddled by his lawyer into believing whatever the FBI wanted him to believe.

So I'm still asking...

How did Arthur Folsom get on this case?

No lawyer is as stupid as he pretends to be... even stupider than the presumably stupid Zazi, who at least had the excuse of fear and confusion under pressure.

And once again...

If the FBI put Arthur Folsom where they needed him to be, then the whole case, such as it is, goes away, as poisoned fruit of a poisoned tree, and that includes everything the FBI discovered as a result of Zazi's weird testimony, including the emails and acetone residue in hotel rooms.

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Acetone residue in hotel rooms, there's a clincher.

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You're exactly right, jonnie, if I'm reading your sarcasm correctly.

What could possibly explain acetone residue in a hotel room, except bombs, or...

http://en.wikipedia.org/wiki/Acetone

Nail polish remover, or dozens of different paints and varnishes?

And about some (supposed) moron like Zazi using acetone and peroxide to build a bomb...

Acetone peroxide is more than ten times as friction and shock sensitive as nitroglycerin.

It's the worst possible choice for a home-made bomb! Nobody but a professional chemist would ever get it near a target!

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Sounds tricky, what do you propose I do with all this acetone?

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spitting on keyboard--thanks for nuttin'

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Don't Talk to Cops.

The police officer who gets the tougher part of the debate in Part II generally agrees with Professor Duane.

Don't Talk to Cops!

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Don't Talk to Cops!

A Regent Univ. Prof! An unlikely source for good advice, but there you have it...

Good catch, RR

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At the last came two false witnesses.

. . . the high priest arose, and said unto him, Answerest thou nothing? what is it which these witness against thee?

But Jesus held his peace.

Unfortunately (or fortunately per the Evangelists), he didn't hold his peace for long.

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didn't hold his peace

No angels got there wings that day...

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So far this thing is looking just like all the other FBI concocted set-em-up terrorist plots with uncanny coincidental timing ... almost by the book (sad there's a book for that sort of thing now). The turncoat lawyer is a new twist, no?

Very good post!

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The turncoat lawyer

Lawyers, (as it is said in the ghetto) are chickenshit.

Translation:Don't put your faith in an "officer of the court"

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The question I have to ask is how does publicizing himself far and wide as an incompetent lawyer help Folsom?

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That's a good question, and it may come down to simple miscalculation. That's how it looks when Folsom's publicist celebrates him as a "premier attorney," while more and more lawyers in Colorado are bashing him in print.

But on TV Folsom still looks like a star, and the FBI is probably very grateful. Otherwise they didn't have enough to charge Zazi, and...

"There is an expression among defense attorneys, 'When there is no crime, there is 1001,' the code section charging people with lying to the FBI."
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Next he'll be on Dancing With the Stars

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Well in the publicist's defense he either says that or he quits. Frankly Folsom looks like a poor lawyer at this point but we don't have any idea what's really going on, or what the FBI has or doesn't have on Zazi.

After 9/11 so many agents and other FBI resources were pointed at foreign terrorism in the USA which so far has turned up almost nothing it's little wonder they grasp at straws, or trump up loose talk into dangerous conspiracies.

OTH the authorities say they have wiretaps with the kid talking to key Al Qaeda operatives in Pakistan. They also claim to have 9 pages of bomb making notes in his handwriting. Apparently the investigation blew up when NYC cops jumped the gun and questioned the Iman in NY. They're supposedly still looking for a couple of dozen suspects. That may all be true or just a convenient smokescreen.

Regardless there's a lot that has yet to play out here. With the DOJ's record we have every reason to be skeptical but I wouldn't pass judgment on anybody at this point.

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New York Police Official in Terror Unit Is Removed

The official transferred out of the Intelligence Division, Deputy Inspector Paul Ciorra, was the intelligence collection coordinator. He has been moved to the Trial Division, which oversees administrative hearings for police officers accused of misconduct. His union leader, Roy T. Richter, noted that the shift would not have been made if he had been transferred for disciplinary reasons.

One former government official with knowledge of the matter said there was no indication that the deputy inspector had done anything wrong and that the decision to approach the imam had been made at the highest levels of the Intelligence Division. The unit is led by David Cohen, a former top C.I.A. official. The former official said the deputy inspector was moved to absorb the blame.

The NYPD Intelligence Division screwed up by approaching Ahmad Wais Afzali, and imam that Zazi had visited in New York. The imam was apparently playing a double game and warned Zazi that he was under suspicion.

Note that the NYPD is led by a former CIA official and is at odds with the Counterterrorism Unit which works with the FBI.

It is within the realm of possibility that Cohen was given the word from someone still at CIA to precipitate the case. Why? Who knows, but there is possibly ongoing differences between the FBI and at least some factions in the CIA.

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"When there is no crime, there is 1001", Martha Stewart.
"Everytime you invoke the fifth, an angel gets its wings..."Zuzu Bailey

While we still have a Fifth Amendment, don't disrespect it by talking to the cops.

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It would be interesting to know exactly who recommended Arthur Folsom to Najibullah Zazi, and this is a question that someone in Colorado could probably ask any members of Mr. Zazi's family who aren't in jail yet.

Arthur Folsom is an awfully convenient apparition for the FBI, with a "case" that was going nowhere. Folsom appears and 24 hours later Zazi starts talking, and talks and talks and talks.

Even if Folsom was so clueless that he didn't foresee how deep Zazi might bury himself, after 10 or 12 hours of questioning, it must have been screamingly obvious.

But on they went, Mr. Zazi and his very convenient attorney, day after day.

Did somebody on the prosecutorial side of this business suggest Arthur Folsom to one of Mr. Zazi's friends? Or was it just blind luck that the FBI drew the equivalent a winning Lotto ticket when their new best friend Arthur Folsom appeared on the scene?

Meanwhile, the Zazi family is being evicted from their apartment, and it's just another argument against releasing Najibullah Zazi that he now has nowhere else to go, except to jail.

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Catch-22.

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If the FBI questioned me for 28 hours, they would no doubt come away with evidence of my conspiring to aid terrorists.

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yes, like the guy who killed himself last year after the FBI named him as the One and Only Suspect in the anthrax case.
The FBI has zero credibility.

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As a criminal defense attorney myself, I'd have to agree that it looks like a severe case of incompetence - although one never knows what goes on between lawyer and client. Reminds me of another colossal act of stupidity - OJ's first lawyer who let the police question his client without even bothering to show up.

Although I find her a bit over-the-top, Merritt knows her stuff. Some of you may remember, however, how she and her website were regularly pilloried in these parts because she had the temerity to support Hillary Clinton in the primary.

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one never knows what goes on between lawyer and client

From the cult classic Rustlers' Rhapsody,

Zazi: "Man, you sold me out, why?!!"
Folsom (Quoting Patrick Wayne--yeah, John's son)
"I'm a lawyer, you idiot!"

originally:
Rex O'Herlihan: You're not a good guy at all!
Bob Barber: I'm a lawyer, you idiot!

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Also starring Andy Griffith as "Colonel Ticonderoga!"

You must be a legend when even the name of your character chews the scenery.

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Let's not forget Sela Ward...

BTW, in appreciation of your handle, I will add the quote that I originally excised from the post:

"Yep, the root is definitely kickin' in..."

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"Never ascribe to malice that which is adequately explained by incompetence." It's unreliably ascribed to Napoleon, but, in my experience, it's true in the legal profession.

Merritt is inclined to ascribe Folsom's actions to incomptence. At this point, so am I. What you're seeing her is such a commonly recurring fact pattern that malpratice insurers are constantly warning about it in their newsletters and such.

To little effect.

Attorneys who don't have their egos under control regularly make the mistake of thinking that the skillsets they acquire in one area are transferrable to another. Sometimes that's true. The problem is that some attorneys egos get in the way of their ability to distinguish between "sometimes" and "always." In particular, it's a problem when ego and avarice come together, as it does when a civil litigator with no criminal law experience gets called about a high profile criminal case. It invariably results in the legal equivilent of an orthopedic surgeon who thinks he's qualified to remove a brain tumor.

Everything this guy did reads like he is working off the official checklist of classic mistakes made by civil lawyers who decide they're so smart, they don't need any criminal practice experience to take on a high profile case as their first criminal matter. He tried to handle it like it was a high profile civil case involving allegations of personal wrongdoing. He hired a flack and started trying to prejudice the jury pool. He naively thought his client could help himself by waiving his right to remain silent and talk to the FB-effing-I for hours and hours. And, the root of all his errors,he apparantly believed his client's protestations of complete innocence.

When a lawyer with only civil litigation experience gets a call about a criminal matter, the only correct answer is "I'm not competent to handle that. Keep your mouth shut and don't say ANYTHING to the cops until I can get you a criminal lawyer." The ones with the ego problem are the ones who can't bring themselves to utter the words "I'm not competent to handle that."

What I can't believe, without overwhelming evidence, is that the guy would endanger his law license by selling out a client to the cops. That's a whole level of stupid beyond merely screwing up the client's case. Taking on a matter beyond your competence is not a mistake that can cost you your livlihood. Selling out a client to the FBI is. There's no way it would stay secret if you did that (especially if the FBI is involved) and, thus, no way you wouldn't end up in a disciplinary proceeding that would inevitably lead to disbarrment. If you're totally convinced that lawyers are, as a class, sociopathic, venal, co-opted scum, you're not going to believe this, but the truth is that the profesion does not tolorate that kind of thing. It will come down on you like a ten tons of shit if you do it. There's a certain degree of highmindedness at work but there's also a basic understanding that it's just plain bad for business.

Mere malpractice? Meh. That's between the lawyer and the client who's case he lost.

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Incompetent? maybe.

But Folsom's botched job has led to this very interesting headline:

US Charges Afghan - Born Man With Bombing Plot

http://www.nytimes.com/reuters/2009/09/24/world/international-uk-usa-security-newyork.html

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Um...why does Folsom need a publicist?

And Mr. Guerilla, one can rail against a person's political choices, and still find them professionally excellent.
Jeralyn also follows Colorado environmental issues closely, and provides links galore. She's great, even if she did support Hillary. :-}

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if she did support Hillary.

Ummm....I'm not sure how to put this....exactly...as the person who proudly coined the bumper sticker "OBAMA! Because Brains Matter", but who also understood that H. was actually left of Prez....now that we have our purchase home and out of the box...what is that expression, buyer's doubt, buyer's anxiety, help me out here...

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"who also understood that H. was actually left of Prez"

Uh,...No.

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Someone above was pointing out that many at the Cafe had nuked jeralyn merrit because she supported Hillary. I was making a teeny tiny joke, jollyroger. Who is in you avatar photo?

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teeny tiny joke, jollyroger

So was I. I remember how Jerralyn backed H. and I can recall doing some serious Hilary-hating myself back in the day...right now, I'm hoping that the presumption of seriousness of purpose that I grant Prez is correct.

I do understand that my desire to see someone kick ass and take names is childish, altho I can't shake it.

It is precisely because he cannot be seen as initiating much of what he may ultimately desire that I give him slack.

EG, much better to come in guns blazin in af/pak and then admit, hey, I was talked out of it. It ;\actually gives him cover.

Who said "that was no lady, that was my wife?"

That's no avatar.

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I forgot to say thanks for writing this, Rootie. Maybe the Fibbies recommended Folsom.
As an aside, there are lots of Mormons joining the FBI. Whassup with that?

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I had that thought myself (that Folsom was an FBI choice).

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don't say ANYTHING to the cops

Correction (conrespetto) "...to anyone"

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Good run down, RR. I think this is a timely arrest on many fronts including the Patriot Act provision renewals as you say. How can we combat global terrorism, if we can't demand that libraries and bookstores reveal what people are reading?

More than anything, though, it seems very familiar in relation to expanding or extending the war in Afghanistan. What could be better proof than a Afghani terror plot on American soil that we really do have to fight 'em there now, so that we won't have to fight 'em here? I think another 50,000 troops and 500 drones to add to the 150,000 troops and security contractors there now should do it.

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