JustOneMinute

The March On Matthews

Chris Matthews drew fire last week for his observation that, in his recent audiotape, Osama Bin Laden seemed to be echoing some of the themes commonly struck by the anti-war Left (my original posts are here and here).

Peter Daou, a former Kerry adviser now writing at Salon, was an early critic of Matthews' comments.  Now Mr. Daou is back with a rebuttal to my defense of Chris Matthews right to speak his mind:

Tom, the issue is this: there's no reason on earth to lump together the words of Moore and a bloodthirsty terrorist. No reason, other than to push the latest GOP talking point, namely, Democrats are treasonous terrorist-appeasers.

Is that really the latest GOP talking point?  I would have thought it was an oldy but goody; maybe we can ask former Senator Max Cleland for his opinion.

No matter.  Let's see if we can think of some reasons to compare Osama's rhetoric with Michael Moore's.

(1)  Osama has made a Moore reference before, in his October 2004 pre-election tape.  As Mark Coffey pointed out, Michael Moore did not exactly hang his head in shame or outrage at the time; from the Moore website, with emphasis added to a pre-election open letter to President Bush:

Hey, we’ve all been there. “You’re fired” are two horrible words when put together in that order. Bin Laden surfacing this weekend to remind the American people of your total and complete failure to capture him was a cruel trick or treat. But there he was. 3,000 people were killed and he’s laughing in your face. Why did you stop our Special Forces from going after him? Why did you forget about bin Laden on the DAY AFTER 9/11 and tell your terrorism czar to concentrate on Iraq instead?

There he was, OBL, all tan and rested and on videotape (hey, did you get the feeling that he had a bootleg of my movie]? Are there DVD players in those caves in Afghanistan?)

(2)  In his latest tape Osama was plugging another lefty's book, "The Rogue State" by Blum.

(3) Osama cites other conventional lefty talking points in this tape, such as Bush's "Mission Accomplished" speech.

So, one might well hold the opinion that Osama is trying to make his case to the American people by adopting the arguments of the left.  And in fact, Mr. Daou has no problem with this opinion as long as it is expressed by the proper people:

And this is about a reporter saying it, a reporter who is supposedly playing "hardball" with guests of all political stripes, a reporter who is presented as non-biased. Last I checked, Matthews' show wasn't called "Rightwing Hardball."

Since we're talking about distinctions and differences, there's a world of difference between an ordinary citizen or a partisan pundit saying something and a reporter saying it - when the reporter is presented as a "neutral" deliverer of unbiased information. I'm less concerned about someone like Bill O'Reilly or Sean Hannity attacking Democrats as terrorist-lite, considering that both are confused men consumed by anger and arrogance. O'Reilly's agenda is obvious, Matthews' agenda is insidious.

My goodness - Chris Matthews is meant to be a "neutral" deliverer of unbiased information?  Chris Matthews without opinions would be like... silence.  NBC describes his show as "a nightly hour of in-depth political analysis and fiery debate"; I don't think anyone, with the convenient exception of Mr. Daou, is under the illusion that Chris Matthews is meant to provide "objective" news rather than entertaining opinion.

So if Matthews has the opinion held by righties and Michael Moore, that Osama sometimes picks up Moore's talking points, why can't he say so?  I say he can.  Mr. Daou, who disagrees, is at least clear enough in his objective, as explained by the first link he provides - he wants to scream loudly enough that Matthews is moved even further to the left (I am making the bold assumption that, based on his resume, Matthews is not exactly a movement conservative - for non-link followers, here is a sampling:

Matthews spent 15 years in politics and government: he worked in the White House for four years under President Jimmy Carter as a Presidential speechwriter and on the Government Reorganization Project, in the U.S. Senate for five years on the staffs of Senator Frank Moss (Utah) and Senator Edmund Muskie (Maine), and was the top aide for Speaker of the House Thomas P. “Tip” O’Neill, Jr. for six years.

Well.  Mr. Daou and his followers are certainly free to scream about anything they like in this free country.  But please don't ask me to see this as anything other than an attempt to bully a media figure into hewing to their party line.

MORE:  Follow the campaign against Matthews here.

Alito - "A Man Of Honor"

Samuel Alito is confirmed to the US Supreme Court by a vote of 58-43, according to the soon-to-be-corrected Times headline (The story says the vote is 58-42, which totals to 100).

The Times also runs a story looking at the strategies of the two camps.  From the Dem side comes this bit of cognitive dissonance:

Among other things, several Democratic aides said, Mr. Flug drove the investigation into Judge Alito's failure to recuse himself, as he had pledged to do during his court of appeals confirmation hearing, from cases involving his mutual fund company, Vanguard. But Mr. Flug met with polite skepticism from many of his colleagues.

"You are going to ask more questions about that oversight where Alito made no money?" a staff member for another Democratic senator said he asked Mr. Flug.

"It became clear to us early on," the staff member added, "that the guy may be way too far right for our tastes, but we think the guy is a man of honor."

Maybe next time they will match the message to the man.

You Make The Call

From Atrios, rallying the troops prior to the filibusted:

Cruising into Tuesday evening next week there will be two possible storylines:

1) The Democrats are a bunch of losers, as are all of their supporters. Bush and his giant codpiece looked magnificent at the state of the union, and Mrs. Alito was very happy and smiling sitting next to Mrs. Bush safe and content now that the magnificent and mighty President Bush made that bad Ted Kennedy go away.

2) The Democrats shocked Washington today by holding together, dropping a mighty turd in the punchbowl of the Bush administration, dealing a deadly blow to his nomination of Alito. The president won't be too happy tonight as he gives the 2006 state of the union speech.

I reject these false choices!  How about:

(3) The Democrats shocked Washington today by dropping a mighty turd in their own punchbowl, demonstrating that they are a bunch of losers, as are all of their supporters.

Just asking!  Mickey rises (or at least squirms in his chair) in defense of a principled battle in a lost cause.

Dana Milbank is less enamored of Kerry's Quixoticism:

Tasting Victory, Liberals Instead Have a Food Fight

The new Washington Post-ABC News poll finds congressional Democrats in the best position they've held in 14 years, besting President Bush and Republican lawmakers on Iraq, the economy, health care, immigration, ethics and more.

All of which can mean only one thing: It is time for the Democrats to eat their own.

Well.  Time will tell whether this, "Look at me, I want a filibuster and I want it now" approach by the 'Netroots" will be seen as an effective energizing maneuver, or simply brand the Dems as captive to the far left.  For my money, this faux-filibuster wasn't a strategy, it was a tantrum.

 

Jumped The Shark?

"24" finally jumped the shark?  Let's get one thing straight, Kevin - the only reason that shark is conscious right now is because Jack Bauer doesn't want to carry it. 

MORE:  The correct "shark-jump" is noted in Kevin's comments, as is the actual shark activity.

More Glory For the 'Netroots'

DNC Chairman Howard Dean has nearly run out of cash?  So says Matt Drudge, citing a Roll Call story tucked behind their subscription wall.

No worries - I am sure the Great and Powerful Kos will bail him out.

Meanwhile, I must take issue with Stephen Spruiel, who has described the current netroots eruption as a "civil war" within the Democratic Party.  "Civil"?  What would "uncivil" look like?

I'm going to toss in some thoughts on civility from a marginalized prophet without honor:

Believe it or not, I long for civility, but I have an ulterior motive. I think my arguments are so good that they will prosper in a rational debate. It also makes life more interesting. I would rather test my views against somebody sharp like Eugene Volokh than throw verbal mudballs at silly people. What the hell, I could be convinced I'm wrong. It's happened. I actually appreciate it, though I can't say it doesn't ache a little.

If reading the full post gives you a wave of nostalgia, you *may* have been reading blogs too long.  The Four Horsemen, indeed - where are they now?  Daniel Drezner has a related post about blogs and the media.

MORE:  My relentless warrantless eavesdropping, combined with extensive data-mining and creative mis-spellings, has delivered to me the probable Dem talking points to rebut any Bush SOTU claims about a recovering economy.  Do not attempt this at home.

Hmm - on that mis-spelling story, I want a "Democracy for Dummies" headline.

Libby And The Press

Clarice Feldman at The American Thinker puts her legal mind to work on Libby's recent court filings.

Goodbye, Alan

The Times says good-bye to Alan Greenspan, with coverage of his farewell party and glimpses of his next life:

Mr. Greenspan is not disappearing. He plans to write a book and start a consulting firm called Greenspan Associates. And while he does plan to write and comment on the economy, he has vowed to avoid any comment about monetary policy.

Ms. Mitchell, his wife, said he recently started figuring out how to do his own research on the Internet; he is still in the process of getting a personal e-mail address.

Nothing about a blog.

Take The Money And Run

Jim VandeHei of the WaPo puts his head in the lion's mouth:

Blogs Attack From Left as Democrats Reach for Center

By Jim VandeHei

Washington Post Staff Writer
Saturday, January 28, 2006;  Page A06

Democrats are getting an early glimpse of an intraparty rift that could complicate efforts to win back the White House: fiery liberals raising their voices on Web sites and in interest groups vs. elected officials trying to appeal to a much broader audience.

These activists -- spearheaded by battle-ready bloggers and making their influence felt through relentless e-mail campaigns -- have denounced what they regard as a flaccid Democratic response to the Supreme Court fight, President Bush's upcoming State of the Union address and the Iraq war. In every case, they have portrayed party leaders as gutless sellouts

..."The bloggers and online donors represent an important resource for the party, but they are not representative of the majority you need to win elections," said Steve Elmendorf, a Democratic lobbyist who advised Kerry's 2004 presidential campaign. "The trick will be to harness their energy and their money without looking like you are a captive of the activist left."

Steve Elmendorf has been marked for doom by the Kos himself.  Continuing:

The blogs-vs.-establishment fight represents the latest version of a familiar Democratic dispute. It boils down to how much national candidates should compromise on what are considered core Democratic values -- such as abortion rights, gun control and opposition to conservative judges -- to win national elections.

Well, yes - the DLC was formed twenty years ago in an attempt to drag the party to the center.  How's it going?  I would guess that blogs and the internet have made the unelectable left even better organized and harder to work around; the days when a candidate could tell Barbra Streisand what she wanted to hear, pocket her check, then tell the public something that made sense are long over.

(That said, that is an odd list of "core values" for the Democrats; Peter Beinart dropped gun control and added gay marriage in one essay noted by Mickey Kaus.)

Mr. Beinart also waxed eloquent about the Democratic base in another essay, "A Fighting Faith", which was written after the election of 2004:

Kerry was a flawed candidate, but he was not the fundamental problem.The fundamental problem was the party's liberal base, which would have refused to nominate anyone who proposed redefining the Democratic Party in the way the ADA did in 1947. The challenge for Democrats today is not to find a different kind of presidential candidate. It is to transform the party at its grassroots so that a different kind of presidential candidate can emerge. That means abandoning the unity-at-all-costs ethos that governed American liberalism in 2004. And it requires a sustained battle to wrest the Democratic Party from the heirs of Henry Wallace. In the party today, two such heirs loom largest: Michael Moore and MoveOn.

Well, the few remaining moderate Dems have their hands full.

This next bit from VandeHei looks like an extended typo (when I do this, I use the word "braino"):

Many Democrats say the only way to win nationally is for the party to become stronger on the economy and promote a centrist image on cultural values, as Kaine did in Virginia and as Bill Clinton did in two successful presidential campaigns.

Stronger on the economy?  It's not the economy, stupid - after eight years of Clinton and eight years of Bush, I don't think the Dems are at a disadvantage there (although a platform of tax hikes now, tax hikes tomorrow, tax hikes forever may not be a winner).  For my money that sentence ought to read, "...the only way to win nationally is for the party to become stronger on national security...".

Peter Daou, who did blog outreach in the 2004 Kerry campaign, had thoughts last September about the power of blogs, and what lefty blogs ought to be thinking about.  And here is an update.  I think these are most interesting to readers with a particular world fantasy view, but there they are.

Punch The Ticket

Hillary joins the "Filibuster and Die!" movement. 

Whatever.  Just as every Senate Democrat with Presidential aspirations voted for the Iraq War Resolution (except Graham), so too will they join this filibuster.  Fortunately, this time their political machinations won't have a real-world impact beyond their fund-raising.

MORE:  Hillary's statement; and yes, Bob Graham opposed the resolution in 2002 for being unreasonably pacific, so I'm counting him out.

UPDATE:  Or is Hillary tryng to sidestep the "Stop Hillary" crowd?

I Strike Premptively - Times, Go Cheney Yourself!

Because the Sunday Dead Tree Times arrives before certain sections are available online, I can pre-emptively strike on tomorrow's Outrage du Jour in the NY Times.

The Times has a long feature in the Art and Leisure section promoting David Mamet and his new television show, "The Unit" titled "Mr. Mamet Has A Few Choice Words" [now here.].  One of the recurring themes of the piece is that Mr. Mamet favors language that can't be repeated in a family newspaper.  Well, that's one way to stay off the record.

But on to the outrage!  At one point, reporter David Itzkoff tells us that Mr. Mamet partnered with Shawn Ryan to help him pitch the show around Hollywood because

"my attitude was always, 'I don't need your money, why don't you' " - and here he used a phrase deemed appropriate only by sailors and vice presidents.

Must be lots of sailors (and a vice president) commenting at the WaPo.

A Terribly Minor Point

Yesterday's WaPo had an interesting article about the NSA tussle.  Here, as a nitpicker's exclusive, is a paragraph that catches our eye.

From a writer's perspective, Messrs. Eggen and Pincus faced a real stylistic challenge.  However, they opted for simplicity, and went awry.  Here we go:

Bush and his top aides have repeatedly stressed that "Congress" had been briefed on the program over the past four years, but have often neglected to mention that the briefings were limited to the "Gang of Eight": the speaker and minority leader of the House; the majority and minority leaders of the Senate; and the chairmen and ranking Democrats on the two intelligence committees. And they were barred from taking notes or discussing what they heard with other lawmakers or their staffs.

From the Jeffords defection in 2001 until the new Senate was sworn in in January 2003, the Senate Democrats were in the majority and Bob Graham was Chairman of the SSCI.  Even then, Democrats were helpless before Bush's powers.

Geez, more errors?

Several other prominent Democrats have also questioned the program's legality since it was made public, including Reid, House Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jane Harman (D-Calif.), ranking minority member of the House intelligence committee.

Jane Harman questioned the legality of the briefings, which the NY Times memorably mis-headlined.  I did not realize she had changed her view since December and decided the program was also illegal - there is nothing on her website following her announcement that the briefings were not up to standard.  Was it on "This Week With George S."?  If so, it was overlooked by ABC.

Irony Overload

Matt Yglesias rises up in defense of dummies.

Illumination occurs in the comments section.

The Times On The NSA

Eric Lichtblau and Adam Liptak of the Times round up the legal arguments on the NSA story.  They do not mention the proposed 2002 DeWine amendment to FISA (our take below).

On that subject, we are intrigued by this from Glenn Greenwald:

(1) Marty Lederman, a former Justice Department official and current Georgetown Law Professor (and current blogger), is an insightful and knowledgeable source for the NSA scandal. He left a Comment to an earlier post here which contains some highly informed speculation as to what this eavesdropping program likely was about and why it was implemented.

And here is the comment itself:

Marty Lederman said...  

Glenn: I think they didn't go through the FISA process for the simple reason you've already suggested: that the surveillance they wanted to engage in was unlawful under FISA and thus would never be approved by the FISA court.

My guess is that it goes beyond FISA in three ways:

1. As you note, FISA requires a showing of probable cause. They're working on a somewhat-to-much lower "reasonable basis" showing (and of course, because they're not going to a court, they only have to satisfy *themselves* of the lower showing).

2. Probable cause or reasonable basis that . . . what? Under FISA, that the *targeted* person in the U.S. is an agent of a foreign power. (We're principally talking about domestic-to-foreign calls here -- international-to-domestic calls were never covered by FISA in the first place unless intercepted in the U.S.) But I get the distinct sense from their public statements that the Administration is requiring only a reasonable basis that a party on *either* end of the communication is "covered." An example: You're the cousin of someone who they suspect of being Al Qaeda overseas. They tap *your* outgoing calls to your cousin, even where there's no proof that you have anything to do with Al Qaeda. FISA wouldn't allow that, even *with* probable cause that your foreign cousin is an agent of a foreign power.

3. They're not limiting it to proof (or "reasonable basis") that someone on the call is an agent of a foreign power. It appears to be enough under the NSA program that one person on the call (again, at either end) is a member of a group affiliated with a foreign power -- which could be a far cry from being an agent of a foreign power (let alone a foreign power responsible for 9/11 and thus covered by the AUMF). Again, that goes beyond FISA.

Because a good number of the calls involve one or more of those three diversions from FISA standards, going through the FISA Court was not an option. That's my best guess right now, anyway.

Good work -- Marty

 

Those seem like reasonable guesses.  So let's cut to the NY Times poll from yesterday, where folks puzzled over the balancing of civil liberties with national security.

In one striking finding, respondents overwhelmingly supported e-mail and telephone monitoring directed at "Americans that the government is suspicious of;" they overwhelmingly opposed the same kind of surveillance if it was aimed at "ordinary Americans."

Well, in his Monday appearance we had General Hayden assuring us that he takes his Constitutional duties seriously, and that this program has elements of "hot pursuit" of Al Qaeda.

Can we trust our nation's soldiers and spies to protect us, or are they more dangerous than Al Qaeda?  Should we fight Al Qaeda with Special Forces or lawyers?  These are tough questions only for the "Impeach Bush Now" crowd.

You F***** Up - You Trusted Us

On Thursday, the NY Times editors called for a champion to lead a filibuster against Supreme Court nominee Samuel Alito. 

On Friday, the NY Times mocked the effort of John Kerry to lead a filibuster against Samuel Alito.

Oh, well, Senator - make the best of it.  TimesWatch has the gory details.

Batten Down The Hatches At NBC News

The Libby defense team recently filed a request for the court to order Special Counsel Fitzgerald to turn over the information he gleaned in his many court tussles with reporters during his investigation of the Plame leak.

Links to the filings are here; we find a special bit of bad news for the Washington Desk of NBC News:

Another issue concerning Mr. Russert’s expected testimony which the defense needs to investigate to examine him effectively at trial is whether any of the NBC reporters who worked for him were aware of Ms. Wilson’s identity prior to July 14, 2003. (6)  If any such NBC reporters knew this information before that time, the defense would be entitled to gather that information to prepare its cross-examination of Mr. Russert. Once the defense gets further information about the sources who disclosed Ms. Wilson’s employment status, we can investigate whether these sources were in communication with any reporters in the NBC Washington bureau prior to July 14, 2003, or if they talked to other individuals who might have passed this information on to NBC’s Washington reporters.

The filing specifically cites Ms. Mitchell, noting her statement on Oct 3, 2003 that, among journalists following the Niger story, it was "widely known"that Ambassador Wilson's wife worked at the CIA.  The filing also mentions her subsequent backpedaling (Background and transcripts here).

However, it is clear that the rest of the merry Washington crew are not off the hook.  And by happy coincidence, Tim Russert, Andrea Mitchell, Pete Williams, and David Gregory were assembled on Oct 29, 2005 for "The Tim Russert Show" on CNBC to chat about the Plame leak.  Extensive excerpts from the transcript can be found here, but we will highlight just a few bits.  As background, Russert had been away on July 6, 2003 when Wilson's op-ed was published, so it was Andrea Mitchell asking the tough questions with the Ambassador as her guest on Meet The Press.  Here we go from Oct 2005, The Tim Russert Show:

RUSSERT: I came back after that interview, after The New York Times piece (Sunday, July 6, 2003), and there was a discussion about Joe Wilson and I didn't know very much. And then when I read Novak's column the following Monday, I said, `Oh, my God, that's it. Now I see. It's his wife, Valerie Plame, CIA, sent him on the trip. Now I understand what everybody was trying to figure out.'

"Now I understand what everybody was trying to figure out."  What does that mean, Andrea Mitchell?  What was "everybody" trying to figure out, Mr. Gregory?  What was being discussed in the newsroom about Joe Wilson's wife, Mr. Williams?

Or was Tim Russert just hallucinating?  Well, a bit later, he adds this explanation of what he would have done if he had been there that week and had known that Wilson's wife was at the CIA:

RUSSERT: Well, ironically, when I was asked about this, I said, if I had known this, I would have told Andrea Mitchell. I would have told Pete Williams.
MITCHELL: In fact, Tim, you would have called me and said, `You hosted "Meet the Press" and questioned Joe Wilson and covered the agency and you didn't know that the wife--what's going on with you?'
RUSSERT: And I did call Neal Shapiro, the head of NBC News, and say, `You know, we have this high-level viewer complaint about what's on cable,' and that--you know, that was the extent of my sharing information with Neal Shapiro.
GREGORY: Wait...
RUSSERT: If I had known something with--then I would have said to Neal--and Neal would have said, `Get to the cameras.' Or you know what? Actually it is so sensitive...
MITCHELL: We would have decided not to...
RUSSERT: ...I would have even talked--we would have talked it through and said...
MITCHELL: Right.
RUSSERT: ...`Hey, what about this?' or `Should we check her status?' It's easy to say that in hindsight, but I...
MITCHELL: In fact, we should tell...
RUSSERT: ...when I read it in Novak, boom.

When he read it in Novak, "boom"?  When I read it in Novak, it was "Huh?"  The news that Ms. Plame was "an operative" at the CIA answered a question that I, at least, was not asking.  Why was it a "Boom" revelation for Tim Russert?

Russert is right about one thing - not disclosing anything about Wilson's relationship with the CIA was an absurd journalistic faux pas.  What was the NBC story - "In intelligence dispute between the White House and the CIA, the CIA spouse vouches for the CIA"?  Do tell. 

I'll bet that the Libby defense team will want to chat with more than just Ms. Mitchell.  That said, we should note that David Gregory may really be out of the loop - he chimed in with this:

GREGORY: And it is interesting--it's also interesting, I should just point out, that nobody called me at any point, which is unfortunately...
WILLIAMS: Apparently not.
GREGORY: ...not the point.
RUSSERT: Does anybody ever?
GREGORY: But I just wanted to note that.
RUSSERT: I've been meaning to talk to you about that.

Stand tall, Stretch - you may be the last man standing if Russert, Mitchell and Williams have a ghastly experience at the Libby trial.

Or for the nitpickers, nobody called Matt Cooper, either - he initiated the calls to both Rove and Libby in order to detect their plot to out Wilson's wife.

BONUS ROUND:  This filing is emphatic that more filings will follow.

Libby To Pursue Media (cont.)

It was previously reported that Libby's defense in the Plame investigation would include putting the media on trial. [In this context "the media" includes Matt Cooper of TIME, Judy Miller, formerly of the NY Times, and Tim Russert of NBC News, all of whom were named in the Libby indictment.  In addition, the new court filing indicates that Libby's defense may seek testimony from Andrea Mitchell of NBC News, Bob Woodward and Walter Pincus of the Washington Post, and perhaps others (I nominate Nick Kristof)].

The court filings, as described by Reuters, the AP, and the NY Times shed more light on the defense strategy [here is the WaPo, and links to the court filings are here].

From the AP:

Lawyers for a former top White House aide charged in the CIA leak investigation said Thursday the prosecutor should surrender a wide range of information about news organizations and their reporters, including The Washington Post's Bob Woodward.

Special Counsel Patrick Fitzgerald has failed to disclose information that would enable the vice president's former chief of staff, I. Lewis "Scooter" Libby, to properly defend himself, his attorneys argued in papers filed with U.S. District Judge Reggie Walton.

...

A federal grand jury accused Libby of lying when he said he learned about Ms. Wilson's identity from reporters. The indictment contends Libby found out about her identity from the CIA, the State Department and his boss, Vice President Dick Cheney.

"The government should not be allowed to charge Mr. Libby with lying about statements concerning what reporters knew about Ms. Wilson's identity, and at the same time deny him information that may establish one of these possible defenses," Libby's lawyers argued in a 23-page brief.

"The government has refused to produce information in its possession about what reporters learned from sources other than Mr. Libby about Ms. Wilson's employment status," Libby's legal team argued.

The prosecutor has asserted that "such documents are not relevant to a perjury and obstruction case."

"It is material to the preparation of the defense to determine the identity of all reporters who know that Ms. Wilson worked for the CIA, and to discover when they learned such information, from whom they learned it and whether they disclosed it further after learning it," Libby's legal team said.

Tim Russert is a bit of a focal point in the AP version:

The indictment says Libby lied when he told investigators he learned of Ms. Wilson's identity from NBC correspondent Tim Russert; when he told Time magazine reporter Matt Cooper that reporters were telling the Bush administration that Ms. Wilson worked for the CIA; and when Libby told investigators he did not discuss Wilson's wife with New York Times reporter Judith Miller.

Libby would have the right to produce testimony that tended to show many reporters knew about Ms. Wilson's CIA employment and that Russert did make the statement Libby allegedly attributed to him, but that Russert had forgotten about it, the court filing stated.

In addition, the defense could argue that Libby's statement to investigators that "all reporters knew" about Ms. Wilson's CIA connection is a factually correct statement that was made to Libby and that it shows Libby "is simply confused about whether Mr. Russert is the source of the statement," the papers added.

Ahh, the defense won't be accusing Mr. Russert of lying, but they will suggest that he may have misremembered.  Oh, boy.  We had extensive excerpts from Mr. Russert's problematic statements here, and misremembering is a distinct possibility.  Bonus speculation - all of Russert's oddly evasive answers are designed to let him say that he has never lied, or misremembered, to the American people.  Hmmph - Fitzgerald represents We the People, yes? 

Well, maybe Russert wants to be able to say he never lied directly, or on air, or some such.  No matter - if the defense can make this stick, he is doomed, and he knows it.  Mr. Russert won't mention that little conflict on air, of course, but he knows it.  In any event, fans of Mr. Russert will not want to miss the spanking he receives from Arianna over 'Lukegate'.

Reuters shines a light in a different direction:

The attorneys said the motion concerned their request for documents and information on three important issues: "What did the press know prior to July 14, 2003, about whether Valerie Plame Wilson worked at the CIA, from whom did they learn it and with whom did they discuss it."

They said turning over the information would enable them to decide the necessity and scope of pretrial subpoenas for journalists and news organizations.

The motion made clear that what the reporters knew will be an important part of the defense strategy.

"It is necessary for the defense to determine and investigate which individuals served as sources for journalists who learned about Ms. Wilson's employment status prior to July 14, 2003," they said.

"Once we learn the names of the reporters' sources, we will attempt to interview them, investigate whether they discussed information about Ms. Wilson with anyone else and evaluate whether to subpoena them for testimony at trial," they said.

Libby's lawyers also sought copies of subpoenas issued to reporters and news organizations during the prosecutor's grand jury investigation into the leak, and any agreements to limit the scope of information provided by the reporters.

We are especially intrigued by the defense attempt to learn about "any agreements to limit the scope of information provided by the reporters [to Fitzgerald]".  Gentlemen such as Mr. Pincus of the Post may be asked questions by the defense that Fitzgerald passed over, such as, "Was the leak you received on July 12 your first hint that Ambassador Wilson's wife was at the CIA, or had other sources mentioned this to you earlier?".

David Johnston of the NY Times notes another distinct possibility, although he does not name his colleague Nick Kristof:

The defense request strongly suggested that Mr. Libby's defense could turn on the testimony of reporters, who are expected to be called as witnesses in the trial, including those who testified during the grand jury investigation about their conversations with confidential sources and perhaps others who have not yet been identified.

Emphasis added.  And let's suggest some more names - based on her famous Oct 3, 2003 statement that, among reporters pursuing the Niger story, the fact that Wilson's wife was at the CIA was "widely known", it seems a fair bet that chatting with Andrea Mitchell will be a part of the defense strategy.  To compound the confusion, in Oct 2005 Ms. Mitchell admitted that she had spoken with investigators, but later she decided to tell Don Imus that she had "in no way" cooperated with the Fitzgerald investigation.  Maybe she spoke with investigators before Fitzgerald took over?  She ought to have lots to chat about, so I doubt her conversation with Libby's lawyers will flag.

My Not So Bold Prediction - this trial will mark a watershed in the history of the media in America.

UPDATE:  The WaPo filed past my bedtime, but they add the news that Andrea Mitchell and Walter Pincus (as well as the obvious choice, Bob Woodward) are mentioned in the papers.

The court papers also mentioned an interest in questioning NBC News reporter Andrea Mitchell, who suggested in an October 2003 news program that it was "common knowledge" among some intelligence reporters that Plame worked at the CIA, and Washington Post reporter Walter Pincus, who allegedly learned about Plame from another unidentified source in 2003.

"Common knowledge"?  Among the people following the Plame story, it is widely known that Ms. Mitchell did not use the phrase in quotes.  Well, no good deed goes unpunished; Carol Leonnig of the WaPo did a good job reporting that Mitchell tidbit, and now we will attempt to pry a correction out of her.  The key Mitchell transcripts are gathered here; suggestions welcome (please keep them within the realm of physically possibility).

The WaPo nearly brought a tear to me eye with this:

The defense effort to delve deeper into Fitzgerald's investigation, if successful, could divulge the identities of some anonymous, high-level government sources whom reporters and news organizations have spent years and millions of dollars in legal fees protecting from public view.

Oh, poor dears.  This next bit echoes David Johnston of the Times:

The defense strategy is expected to pull several high-profile Washington journalists into a legal battle over the First Amendment, many of them for a second time.

Many for a second time, some for the first.  The subpoena, the court fight, the adverse rulings, the deposition, the testimony - these high profile journalists may as well prepare themselves to walk the line.

MORE:  Jeralyn Merritt has excerpts from the court filing.  Now, we have a question for Ms. Merritt, whose ghastly conflict of interest makes her a good person to ask - does the Libby request for this information seem likely to be granted by a judge?

The conflict - as a top-notch defense attorney, Ms. Merritt probably has never been satisified that a prosecutor provided everything she wanted; on the other hand, she is not exactly Libby's biggest booster in the blogosphere.

My two cents - this looks like a lay-up, for at least some of these reporters (Nick Kristof may be a fishing trip).

FINALLY:  In response to overwhelming reader demand, here is some contact info for the Libby defense fund.  I noted my personal caveats here; frankly, I can think of a million more worthy causes than bailing out a millionaire Washington lawyer up for too-cute perjury.  (And this comes from a guy who buys tickets to watch Jeter and A Rod).

However - if you are agonizing between a check for Libby and a check for Hillary 2008, here you go:

Libby Legal Defense Trust
2100 M Street, N.W.
Suite 170-362
Washington, D.C. 20037-1233

ADDENDUM:  The WaPo provides helpful links to the Libby indictment, the press release summary, and the Fitzgerald press conference.

I Need A Hero

Down in the comments at PoliPundit, the ListKeeper recounts a mix of obvious and little known facts about Jack Bauer of 24:

1) If you wake up in the morning, it’s because Jack Bauer spared your life.
2) If Jack Bauer was in a room with Hitler, Stalin, and Nina Meyers, and he had a gun with 2 bullets, he’d shoot Nina twice.
3) Upon hearing that he was played by Kiefer Sutherland, Jack Bauer killed Sutherland. Jack Bauer gets played by no man.
4) Jack Bauer’s favorite color is severe terror alert red. His second favorite color is violet, but just because it sounds like violent.
5) Jack Bauer once forgot where he put his keys. He then spent the next half-hour torturing himself until he gave up the location of the keys.
6) Jack Bauer got Hellen Keller to talk.
7) Jack Bauer killed 93 people in just 4 days time. Wait, that is a real fact.
8) Jack Bauer was never addicted to heroin. Heroin was addicted to Jack Bauer.
9) 1.6 billion Chinese are angry with Jack Bauer. Sounds like a fair fight.
10) Superman wears Jack Bauer pajamas.
11) Jack Bauer doesn’t miss. If he didn’t hit you it’s because he was shooting at another terrorist twelve miles away.
12) Lets get one thing straight, the only reason you are conscious right now is because Jack Bauer does not feel like carrying you.
13) When you open a can of whoop-ass, Jack Bauer jumps out.
14) If Jack says “I just want to talk to him/her” and that him/her is you… well amigo, you’re fucked.
15) Killing Jack Bauer doesn’t make him dead. It just makes him angry.
16) When life gave Jack Bauer lemons, he used them to kill terrorists. Jack Bauer fucking hates lemonade.
17) In grade school, a little boy punched Kimberly Bauer, and Kimberly ran home to tell her dad. That little boy’s name? Stephen Hawking.
18) Jack Bauer does not sleep. The only rest he needs is what he gets when he’s knocked out or temporarily killed.
19) No man has ever used the phrase, “Jack Bauer is a pussy” in a sentence and lived to tel-
20) In kindergarten, Jack Bauer killed a terrorist for Show and Tell.
21) Jack Bauer literally died for his country, and lived to tell about it.
22) As a child, Jack Bauer’s first words were “There’s no time!”
23) Jack Bauer’s family threw him a surprise birthday party when he was a child. Once.
24) If you are still conscious, it is because Jack Bauer doesn’t want to carry you.
25) If you get 7 stars on your wanted level on Grand Theft Auto, Jack Bauer comes after you. You don’t want to get 7 stars.
26) Guns dont kill people, Jack Bauer kills people.
27) Everytime Jack Bauer yells “NOW!” at the end of a sentence, a terrorist dies.
28) Jesus died and rose from the dead in 3 days. It took Jack Bauer less than an hour. And he’s done it twice.
29) If you send someone to kill Jack Bauer, the only thing you accomplish is supplying him a fresh set of weapons to kill you with.
30) Jack Bauer could get off the Lost island in 24 hours.

Now They Tell Us

Yesterday the Times had fun with a scary story about the DoJ attempt to subpoena search information from Google.  The lead:

After Subpoenas, Internet Searches Give Some Pause

By KATIE HAFNER

Kathryn Hanson, a former telecommunications engineer who lives in Oakland, Calif., was looking at BBC News online last week when she came across an item about a British politician who had resigned over a reported affair with a "rent boy."

It was the first time Ms. Hanson had seen the term, so, in search of a definition, she typed it into Google. As Ms. Hanson scrolled through the results, she saw that several of the sites were available only to people over 18. She suddenly had a frightening thought. Would Google have to inform the government that she was looking for a rent boy - a young male prostitute?

Ms. Hanson, 45, immediately told her boyfriend what she had done. "I told him I'd Googled 'rent boy,' just in case I got whisked off to some Navy prison in the dead of night," she said. 

We live in parlous times, all right - don't even think about Googling "miserable failure".

Well, fun's fun, but today Adam Liptak of the Times brings their readers back to Planet Earth:

In Case About Google's Secrets, Yours Are Safe

By ADAM LIPTAK

The Justice Department went to court last week to try to force  Google, by far the world's largest Internet search engine, to turn over an entire week's worth of searches. The move, which Google is fighting, has alarmed its users, enraged privacy advocates, changed some people's Internet search habits and set off a debate about how much privacy one can expect on the Web.

But the case itself, according to people involved in it and scholars who are following it, has almost nothing to do with privacy. It will turn, instead, on serious but relatively routine questions about trade secrets and civil procedure. 

Do tell!  And we are supposed to believe that none of the experts quoted in today's story were available yesterday?  And to compound the absurdity, the NY Times has a box of "Related Stories" on the page with the Liptak piece, but somehow, yesterday's story does not appear.  Here is what is listed intead:

Related Articles

• Version of Google in China Won't Offer E-Mail or Blogs (January 25, 2006)
• Google Video: Trash Mixed With Treasure (January 19, 2006)
• AOL Coaxes Google to Try Busier Ads (December 20, 2005)
• The Advertising Column; AOL Choice Of Google Leaves Gates The Outsider (December 19, 2005)

What a clown show.

Well, I can have my fun too - let's rewrite the scary article ever so slightly to promote the floundering TimesSelect:

The government and the cooperating companies say the search queries cannot be traced to their source, and therefore no personal information about users is being given up. But the government's move is one of several recent episodes that have caused some people to think twice about the information they type into [the NY Times] search engine, or the opinions they express in an [on line posting at a NY Times forum or] e-mail message.

I wonder if it dawned on the Times a mere day later that, as a company attempting to establish a major web presence, they were in the same boat with Google?  Or were the editors bothered by the notion that their first story looked like a scare-mongering attempt to sell newspapers, rather than a serious effort to inform the public?  Gee, why am I thinking about the NSA story yet again?

Filibuster Alito

The Times editors want Senate Dems to filibuster Alito.  If this is the new threshold for base-rallying by the Dems, well, go ahead - make my day.

(Related aside - if Dems lack for cliffs to march over, I suggest they start bashing General Hayden, who started the NSA warrantless eavesdropping program, was personally involved in briefing the Congressional leadership, and seems to take his oath to uphold the Constitution quite seriously.  "Bush ordered it!"  Not quite - Gen. Hayden's lawyers told him the order was lawful.

Ooops, I didn't mean to hijack my own thread - there is an NSA post here.)

Back to Alito - at TradeSports, he has about a 98% probability of being confirmed, but only a 16% probability of getting more than 60 votes.  Does that mean there aren't enough votes to break a filibuster?  Does it mean that bettors are putting the probability of a filibuster as very low?  Or does it mean that some Dems are expected to vote to close debate, and then vote to oppose Alito?

I Blame The Freedom Fries

Obesity is on the rise in France, and by 2002 they may overtake the USA in their percenatge of the population that is overweight.   Zut alors!

The  French adoption of the fast-paced American lifestyle is one factor - time spent at meals is down, as is the frequency of family dinners.  But let's point a finger at Mickey D's:

McDonald's is more profitable in France than anywhere else in Europe. Sales have increased 42 percent over the past five years. Some 1.2 million French, or 2 percent of the population, eat there every day.

1.2 million Frenchmen could be wrong.

NSA Eavesdropping - Please Don't Pass DeWine

The WaPo picks up on Glenn Greenwald's DeWine amendment story:

The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.

The proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a "reasonable suspicion" they were connected to terrorism -- a lower standard than the "probable cause" requirement in the statute that governs the warrants.

...

Democrats and national security law experts who oppose the NSA program say the Justice Department's opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.

"It's entirely inconsistent with their current position," said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. "The only reason to do what they've been doing is because they wanted a lower standard than 'probable cause.' A member of Congress offered that to them, but they turned it down."

Well, that is the Dem spin, anyway.  My long ramble is here; briefly, let me make these points:

(1)  The DeWine Amendment only lowered the threshold for non-US persons, which would not have solved the eavesdropping problem as it related to US persons.  Moreover, by re-emphasizing the protected status of US person with new legislation in 2002, the amendment might have undermined the Administration legal arguments supporting the NSA program.

(2)  The Administration might have felt comfortable that its current legal foundation was solid, and taken guidance from a familiar adage - if it ain't broke, don't pass legislation that muddies the waters.

(3)  General Hayden, in his appearance Monday, emphasized the difference between "reasonable" and "probable cause" as the basis for a search, and left us with the impression that the NSA program was operating on a "reasonable" standard.  However, the WaPo delivers a headscratcher on that point:

But Justice Department officials disagreed, saying the standard the department opposed in 2002 is legally different from the one used by the NSA.

"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."

Really?  Legal eagles are encouraged to chime in.

My take - thinking up scenarios where this eavesdropping could be illegal is child's play.  However, the market niche for hysterical handwringing about Bush and Cheney spying on our calls to the hairdresser has been nicely filled by Maureen Dowd.  So my question is this - just what might the NSA be doing that the career lawyers and officers there are convinced is legal?

Now keep in mind - folks can argue all day that habeas corpus is covered by statute, as well as long legal tradition.  Yet in the cases of Hamdi and Padilla the courts found wartime circumstances where Bush really can modify it.  That being so, why are we so sure that a court will never countenance a wartime modification of FISA?

On this theme, Hayden mentioned "hot pursuit", as did AG Gonzalez in his on-line chat at the White House.  At what are they hinting?  From my study of various crime dramas, I have the idea that certain rules about obtaining evidence are relaxed in a hot pursuit scenario.  So one guess is that the NSA program is relying on a "reasonable" standard in a "hot pursuit" context, which would not consistently satisfy the FISA standard of "probable cause".

Let's note the precision in the talking points:

Gonzalez: This is not about intercepting communications between people in America, it's about the "hot pursuit" of international communications involving someone we reasonably believe is associated with al Qaeda, where one of the parties to the communication is already in the United States.

Hayden: This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. 

ONE MORE:  If the program was this simple, and the problem was this simple, why couldn't Sen. Rockefeller articulate his concerns without the aid of his staff?

OTHER VOICES:  Knight Ridder picks up the story; Mark Coffey has thoughts, as does Jeff Goldstein in an update.  We do seem to be coagulating around similar points - whether that is reassuring or unnerving is too soon to tell.

STILL MORE:  Here is AP coverage from 2002 of the DeWine proposal:

Senators propose easing standards for surveillance of foreigners

WASHINGTON – The FBI could face fewer legal obstacles to spying on foreign terrorist suspects in the United States under two Senate proposals.

Lawmakers say they are trying to eliminate barriers that may have prevented the FBI from aggressively investigating Zacarias Moussaoui after he was arrested a month before the Sept. 11 hijackings. Moussaoui has since been charged with conspiring in the attacks.

Civil libertarians and legal analysts question whether the proposals are constitutional.

Under a bill submitted last week by Sen. Mike DeWine, R-Ohio, authorities wouldn't have to offer as much proof that a foreigner was linked to terrorism in order to place wiretaps and conduct secret searches.

"It would be a major change," said Gregory Nojeim, associate director of the American Civil Liberties Union's national office in Washington.

...

FISA has received more attention in recent weeks because of revelations that FBI agents in Minnesota had been denied permission from headquarters to search Moussaoui's laptop computer after he was arrested on an immigration charge. Headquarters had determined there was insufficient evidence to show that Moussaoui was an agent of a foreign government or organization.

FBI Director Robert Mueller told lawmakers this month that the bureau is "looking at ways to tweak" FISA to address the problems in the Moussaoui case.

Sens. Jon Kyl, R-Ariz., and Charles Schumer, D-N.Y., have proposed eliminating the requirement that a foreign terrorism suspect be linked to a foreign power. The standard would remain place for U.S. citizens and permanent residents.

That change could be challenged in courts, said Stewart Baker, who was general counsel for the National Security Agency in the early 1990s. He said FISA was conceived after a Supreme Court ruling that suggested intelligence gathering aimed at foreign powers or organizations shouldn't be subjected to the same kind of constraints placed on regular domestic surveillance.

"There is a risk if you take group membership out of it, that it's a bridge too far for the courts."

Both bills have been referred to the Senate Intelligence Committee...

And here is a 2002 Weekly Standard article that does not appear to have stood up well.  The author makes the useful point that FISA relates to courts and evidence-gathering, not war-fighting.  But here is the excruciating bit:

In other words: The FBI might quite reasonably have pursued Zacarias Moussaoui last August, FISA notwithstanding, but did not. One year later, a mainstream, hardly crazy, civil-liberties-respecting Bush administration might at very least be asking Congress, also quite reasonably, to relax FISA's "probable cause" strictures--so that future Coleen Rowleys can snoop on future Zacarias Moussaouis without "violating" a law that likely isn't constitutional anyhow. But the Bush administration isn't doing that either. Republican senator Mike DeWine has proposed such an amendment to FISA, and even Democrats like Pat Leahy say they're open to the idea. Leahy's is too rough a constitutional sensibility for George W. Bush and John Ashcroft, though. At a hearing last Wednesday, CIA and Justice Department representatives told the Senate Select Intelligence Committee that DeWine's idea was inconsistent with the administration's vision of the Fourth Amendment.

News flash: Our president and his attorney general are, if anything, oversolicitous of the (imaginary) civil liberties of their war-on-terrorism POWS. But don't hold your breath waiting for the newspapers to notice.

Oh, well - I'm sure there is stuff in my archives that I would rather leave there.

 

Oxymoron Alert

Tim Russert will be out at Ripon College in Wisconsin keynoting a conference on media ethics.  By eerie coincidence, Arianna and Mickey have a college-related question on media ethics for Tim and Littlest Russ.

Our Plame-related question for Tim is this:  Prior to the publication of Robert Novak's column, had he heard any rumors or reports that Ambassador Wilson's wife was at the CIA?

As a follow-up - did he learn that from Andrea Mitchell?

And having waited (impatiently) these many months, we have no worries - Libby's attorneys will ask him soon enough.  It is a question whose time is coming.  (And remote Ripon might be a great place to answer it... too bad all those other newsies will be there.)

This Might Be Right

This law might be right. (There is no hope on the name).

NSA Eavesdropping And The DeWine Amendment

Emerging rock star (and Best New Blog finalist) Glenn Greenwald breaks some news on the NSA eavesdropping story:

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:

to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

Mr. Greenwald also provides links to Gen. Hayden's statement from his Monday appearance at the National Press Club, and from the Administration statement in 2002 *opposing* the DeWine amendment.

That's a good job - I have seen zero press coverage of what looks like a very relevant Congressional effort to amend FISA to make it more flexible and nimble.  Well, that's why bloggers score the big bucks.  [Now the WaPo picks it up.]

Kevin Drum provides a handy summary of the state of play which incorporates the proposed DeWine amendment.  As to Mr. Greenwald's arguments and conclusions, well, naturally I can find some points of disagreement.

My proposed alternative view - the Administration felt that they already had the tools to do the tasks at hand.

The Administration said this about the DeWine amendment:

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

Mr. Greenwald focuses quite sensibly on the Administration's assertion that FISA's "probable cause" standard was not an obstacle.  However, the other point being made is that the amendment had the potential to be ruled unconstitutional, which could result in many otherwise solid cases, which could have passed the "probable cause" test, being tossed out.

To relate that to the NSA program, Gen Hayden said this on Monday:

The purpose of all this is not to collect reams of intelligence, but to detect and prevent attacks. The intelligence community has neither the time, the resources nor the legal authority to read communications that aren't likely to protect us, and NSA has no interest in doing so. These are communications that we have reason to believe are al Qaeda communications, a judgment made by American intelligence professionals, not folks like me or political appointees, a judgment made by the American intelligence professionals most trained to understand al Qaeda tactics, al Qaeda communications and al Qaeda aims.

Their work is actively overseen by the most intense oversight regime in the history of the National Security Agency. The agency's conduct of this program is thoroughly reviewed by the NSA's general counsel and inspector general. The program has also been reviewed by the Department of Justice for compliance with the president's authorization.  Oversight also includes an aggressive training program to ensure that all activities are consistent with the letter and the intent of the authorization and with the preservation of civil liberties.

...This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications   entering or leaving America involving someone we believe is associated with al Qaeda.            

I am boldly extrapolating here, but this may mean that with the NSA program the notion of building a conventional case that would be tried in court is secondary to detecting and disrupting plots.  We may be discussing something analogous to the "unlawful combatant" concept, and, as the Administration has noted repeatedly in defense of the NSA program (here is Attorney General Gonzalez on Dec 19, 2005 and Jan 24, 2006), the Hamdi decision by the Supreme Court did uphold a notion of special latitude for the Administration in wartime.  Let's cut to Gonzalez, from Dec 2005:

Let me take you back to a case that the Supreme Court reviewed this past -- in 2004, the Hamdi decision.  As you remember, in that case, Mr. Hamdi was a U.S. citizen who was contesting his detention by the United States government.  What he said was that there is a statute, he said, that specifically prohibits the detention of American citizens without permission, an act by Congress -- and he's right, 18 USC 4001a requires that the United States government cannot detain an American citizen except by an act of Congress.

We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention."  And the Supreme Court, a plurality written by Justice O'Connor agreed.

So - the Administration declined to support the DeWine amendment because it was not necessary to their "hot pursuit" eavesdropping of Al Qaeda, and might jeopardize the legality of other conventional surveillance cases.

On a different subject, Gen. Hayden is quite emphatic on a point I had noted a while back, and summarized as "A government of men, not of laws" - at some point, critics need to explain why the General, his top lawyers, and the staff at the NSA threw over their years of training to embark on a clearly illegal program.  A possible answer, stated emphatically by Gen. Hayden - they don't think it is illegal.

Here are some excerpts:

Partisans - Not Thinking

The NY Times answers your questions about Atrios, Team Powerline, and, dare I say it, yours truly:

Liberals and conservatives can become equally bug-eyed and irrational when talking politics, especially when they are on the defensive.   

Using M.R.I. scanners, neuroscientists have now tracked what happens in the politically partisan brain when it tries to digest damning facts about favored candidates or criticisms of them. The process is almost entirely emotional and unconscious, the researchers report, and there are flares of activity in the brain's pleasure centers when unwelcome information is being rejected.

I can't tell you how many flares of pleasure I enjoyed during the last campaign; was it good for you, too?

In 2004, the researchers recruited 30 adult men who described themselves as committed Republicans or Democrats. The men, half of them supporters of President Bush and the other half backers of Senator John Kerry, earned $50 to sit in an M.R.I. machine and consider several statements in quick succession.

The first was a quote attributed to one of the two candidates: either a remark by Mr. Bush in support of Kenneth L. Lay, the former Enron chief, before he was indicted, or a statement by Mr. Kerry that Social Security should be overhauled. Moments later, the participants read a remark that showed the candidate reversing his position. The quotes were doctored for maximum effect but presented as factual.

"Doctored for maximum effect" - was Maureen Dowd paid for her participation?

After the participants read the contradictory comment, the researchers measured increased activity in several areas of the brain. They included a region involved in regulating negative emotions and another called the cingulate, which activates when the brain makes judgments about forgiveness, among other things. Also, a spike appeared in several areas known to be active when people feel relieved or rewarded. The "cold reasoning" regions of the cortex were relatively quiet.

The absence of activity in the "cold reasoning" area will come as a no surprise to blog readers.

Researchers have long known that political decisions are strongly influenced by unconscious emotional reactions, a fact routinely exploited by campaign consultants and advertisers. But the new research suggests that for partisans, political thinking is often predominantly emotional.

It is possible to override these biases, Dr. Westen said, "but you have to engage in ruthless self reflection, to say, 'All right, I know what I want to believe, but I have to be honest.' "

"Ruthless self-reflection"?  "I know what I want to believe, but I have to be honest"?  Is he kidding?  This must be coming from a guy who has, like, thirteen readers.  C'mon, anyone can face facts - it takes a real man (or woman!) to keep spinning when all about you others are jumping ship.

MORE:  But seriously, folks - thirty men?  I assume there is an explanation (and if pressed to guess, I would venture that sex-based brain differences muddy the comparisons), but why no women?

UPDATE:  More at Live Science.

'Cheap Suitcase' Watch

Chris Matthews drew fire for "comparing" Michael Moore to Osama Bin Laden, and many on the left our howling for an apology.  Will Mr. Matthews fold up like a cheap suitcase?  We assume so, since, as a reliable Bush-basher, he long ago lost his audience on the right.

Howard Kurtz touches the very tip of the iceberg in this column, noting the quote and linking to Peter Daou of Salon (as we did on Friday).  The National Journal Blogometer, on the other hand, leads with this dust-up.  Hey, hey.

Let me quickly repeat the Matthews comment:

Chris Matthews began by reading this from Bin Laden's statement:

There is no defect in this solution [a proposed truce] other than preventing the flow of hundreds of billions to the influential people and war merchants in America, who supported Bush's election campaign with billions of dollars.

Matthews then says, roughly, "I mean he sounds like an over the top Michael Moore here, if not a Michael Moore. Do you think that sells in America, that this war is being fought for the Daddy Warbucks?"

Is that clear?  Matthews point is that Osama is adopting the rhetoric of Michael Moore, NOT that Michael Moore is adopting the rhetoric of Osama Bin Laden.  This is an important distinction that the critics on the left seem to be determined to blur (as evidenced by the observation that, as yet, I have not seen a prominent critic actually post Matthews remarks in context, although that may changed).

Glenn Greenwald, appearing at Crooks and Liars, explains why Matthews is an outrage:

The anger over Chris Matthews’ comment that Osama bin Laden in his new video sounds like Michael Moore, and the resulting campaign demanding that Matthews apologize, arises from much more than a single comment, and has little to do with Moore himself. The Matthews smear illustrates the fact that it has become routine in our national political dialogue, and among our nation's journalists, to equate opposition to George Bush with subversiveness, treason, and support for Al Qaeda.

Well, there is some candor there, at least - this is about a metaphor, not Matthews, so facts don't matter.  That is a bit of a relief, although the notion of Matthews as a reliable Bush flack is ludicrous.

Mark Coffey has time for a response.

The normally astute Joe Gandelman runs off the rails with this comment:

Matthews has always called each issue as he has seen it and is probably doing the same this time — but he seemingly lost sight of the political context where his comments cause some to charge he is now just  one more echo of the GOP echo chamber.

Hmm, is that how newsies are meant to operate these days?  Don't worry about your own opinion, worry about how the partisans on each side will react to it?  Would it be fair to read this as "Even if Matthews is right, it will upset the left so he should keep quiet"?  How can that be right?

And as evidence that distinctions are being blurred, let's note the comment Mr. Gandelman approvingly cites:

The problem with Matthews' comments is that he is basically saying that over 50% of Americans agree with Osama bin Laden.

Wrong again - Matthews is saying that Osama agrees with over half of Americans.  Try it this way - since Osama also mocked Bush's "Mission Accomplished" appearance in a flight suit, should we conclude that no Bush critic will ever raise that again?  Is it now an endorsement of the WTC attack to say that "Mission Accomplished" was a miserable failure?

Done With Mirrors also smokes Joe Gandelman, who really does not deserve this kind of negative attention (and I know I have praised him in the past, which increases my surprise today).

On the lighter side, DarkSyde, of the Daily Kos, made an appearance at Protein Wisdom, to much merriment.  The DarkSyde theme was to recycle some Kos talking points from last year, cleverly noting that Osama is a religious fundamentalist just like (drum roll...) The Religious Right in the US!!!

Oh, this is breakthrough stuff, although DarkSyde forgot the snappy name ("American Taliban", for folks whose memories stretch back to the Clinton impeachment).  DarkSyde was desperately pleased with himself, although he had not really done his homework, since social conservatives are a bit thin on the ground at Jeff Goldstein's site, but no worries - Darksyde had the success you would expect with that line of reasoning.

In response, he did what any self-respecting Kossite would do - he scuttled back to his own DKos playground, declared himself the winner, and "forgot" to link to the actual discussion.

It's hard to pick a favorite bit - at one point, folks were wondering whether Jeff Goldstein had invented Darksyde as another of his comic creations - but let me offer these cautionary Tales from the Darksyde:

(1)  The Extended Olive Branch: "But, here’s your chance to talk to a front page writer on the Daily Kos about your positions."

Mere words don't capture the excitement this revelation caused.

(2)  The Clever Conspiracy:  There are some among my peers who claim it’s [that would be the Moore-Bin Laden “comparison"] been intentionally laid out as a national trap to snare the right for this very purpose.

Oh, they are too smart for us righties.  And who set the trap - Was Bin Laden in cahoots with Chris Matthews?  Or is Chris Matthews really a lefty (do tell!) trying to lure us to our doom?

This kerfluffle seems to have died its natural death, so my prediction is that Matthews will *not* fold up like a cheap suitcase.  He did have an explanation on Friday, where he stated the obvious, so that will have to do.

More On The NSA Warrantless Eavesdropping Program

Adam Nagourney of the Times ponders the political landscape of the eavesdropping program:

But as the White House and Democrats are well aware, the issue can draw very different reactions depending on how it is presented. These next few days could prove critical, as both Mr. Bush and Congressional Democrats move aggressively to define what is at stake.

Americans may be willing to support extraordinary measures - perhaps extralegal ones - if they are posed in the starkest terms of protecting the nation from another calamitous attack. They are less likely to be supportive, members of both parties say, if the question is presented as a president breaking the law to spy on the nation's own citizens.

If the Democrats present their arguments calmly and sensibly, they might well be able to convince a large swath of the public that Bush overstepped his bounds in balancing national security with civil liberties.

But if my "calm and sensible" caveat is correct, Bush has nothing to worry about - Dems will let themselves be stampeded into calling for his impeachment before the first hearing breaks for lunch.

The WaPo editors are unimpressed by the legal arguments offered by the Administration.  However, their table-pounding finish lacks something:

Especially without knowing the parameters of the surveillance, we hesitate to second-guess the president's argument that FISA's limits are unduly constraining. The surveillance may be critical for national security, and a law written in a different technological age may well need to be refurbished. But the proper way to handle that -- which the administration rejected -- would have been to seek changes in the law, not to do a stealthy end run around the legislative process.

The "stealthy end run" included regular briefings to the Congressional leadership over the last four years.  Would it be a violation of Congressional gift rules to offer the relevant members a few of these?

When I Saw The Mullahs Coming...

Iran - what to do?

David Sanger of the Times discusses the military options, which range from poor to awful:

Mr. Lang was piercing to the heart of a conundrum the Bush administration recognizes: Iran could become a case study for pre-emptive military action against a gathering threat, under a policy Mr. Bush promulgated in 2002. But even if taking out Iran's facilities delay the day the country goes nuclear, it would alienate allies and probably make firm enemies out of many Iranians who have come to dislike their theocratic government. And Iran simply has too many ways of striking back, in the oil markets, in the Persian Gulf, through Hezbollah.

"Could we do it?" one administration official who was deeply involved in planning the Iraq invasion said recently. "Sure. Could we manage the aftermath? I doubt it."

It's ancient history, and was originaly oriented towards North Korea, but let me dredge up my old "Smart Spears" post.  Smart Spears are basically steerable bunker-buster bombs without the explosive charge; the raw impact can do impressive damage to the right type of facility, and afterwards it is a lot less obvious just what happened.

Fareed Zakaria also has thoughts on Iran.

Testing

This is an ongoing joke, right?

UPDATE:  Hey, it posted!

Now, if I can recreate my last post...

The Supreme Court And The FEC

Rick Hasen tells us about a new Supreme Court decision on campaign finance:

Breaking Supreme Court Election Law News: Supreme Court Unanimously Reverses Wisconsin Campaign Finance Case, Denies Cert in Key Judicial Elections Case, and Sets Argument Times in Remaining Campaign Finance Cases

[Big Skip, and...]

Longer term, the opinion could be significant. First, it gets the courts and the FEC into the business of separating genuine issue ads from sham isue ads. The irony of course is that the bright line electioneering communications provision was sold as having the benefit of keeping the courts out of this mess. It is sometimes going to be impossible to determine whether an advertiser had an electioneering motive, as the facts of this case well demonstrate. It could be that the courts craft a tough test for plaintiffs to fit into this as applied exception. Or, if as I've suggested, the Supreme Court could well be moving toward more deregulation of campaign finance, this could be an important first step toward undermining McConnell without overruling it.

Libby Defense To Subpoena Journalists

Per the WaPo and Times, recent court filings confirm what Jeff Toobin of the New Yorker reported earlier.  From the WaPo:

Attorneys for Vice President Cheney's former chief of staff told a federal court yesterday that they plan to subpoena several journalists and news organizations to obtain their notes and other information they consider useful in defending their client from perjury charges.

The plan for defending I. Lewis "Scooter" Libby is likely to substantially delay his trial and create another round of tense First Amendment battles over whether a court can compel reporters to turn over information about the confidential sources in Libby's criminal case.

...

In yesterday's court papers, Libby's attorneys hinted at two key elements of their defense strategy. First, they signaled plans to independently investigate journalists involved in the case -- a move that legal experts said would seek to raise doubts about the accuracy of the reporters' memories and methods.

Second, defense attorneys are expected to delve into whether other administration officials mentioned Plame to reporters before Libby did, which would allow them to cast doubt on the prosecutor's assertions. Defense lawyers have said that Bob Woodward, a reporter and assistant managing editor at The Washington Post, helped their case when he revealed in November that another administration source, not Libby, told him about Plame's CIA role before Libby is believed to have first mentioned her to a reporter.

My extensive thoughts are here.

MORE:  Someone ought to mention the recent Wen Ho Lee rulings, which buttressed the right of the defense to go after journalists.

UPDATE:  Jeralyn Merritt has excerpts from the court filing and thoughts of her own.  From the court filing, I will highlight points (A) and (D):

6. It is the position of the defense, based on the government’s written and oral responses to our requests, that significant disagreements exist between the parties with respect to the nature and scope of the government’s obligations under Rule 16 and Brady. These disagreements include, but are not limited to, the following:

A. Whether information in the government’s possession about reporters’ knowledge concerning Valerie Wilson’s employment by the CIA from sources other than Mr. Libby is material to the preparation of the defense. The defendant has already prepared and expects to file a motion to compel disclosure of such information on or before February 3, 2006. on or before February 3, a motion concerning this issue.

...D. Whether information concerning Mrs. Wilson’s status as a CIA employee, and the allegedly classified nature of that employment, is material to the preparation of the defense. The government intends to address this issue with the Court and the defense pursuant to CIPA.

What did other reporters tell Fitzgerald, and was Ms. Plame really covert in a meaningful sense.  Good questions.

Hillary The Hawk Circles Over Iran

Hillary talks tough on Iran; Dan Drezner staked out some ground a few days back.

This is classic from Hillary:

Though never mentioning President Bush by name, Clinton strongly criticized the current administration's policy toward Iran. "I believe that we lost critical time in dealing with Iran because the White House chose to downplay the threats and to outsource the negotiations," Clinton said.

Oooh, the evil "outsourcing"!  One might say that we involved our allies, but that is only a good thing when it works.

More Legal Rationales For The NSA Program

Per the Times, the Administration has prepared a 42 page White Paper explaining the legal basis for the NSA warantless eavesdropping.  I would expect to find the paper at the DoJ website, but so far I am coming up empty [Here it is at FindLaw].

Eric Lichtblau of the Times can hear the roar of the crowd:

The defense comes at a critical time in the administration's effort to quell the growing political uproar over the N.S.A. program. House Democrats will be holding their first hearing Friday on the legality of the program, and the Senate Judiciary Committee has scheduled another hearing in two weeks. A number of legal analysts, meanwhile, including those at the nonpartisan Congressional Research Service, have questioned the legality of the program in strong terms.

But the Bush administration appears undeterred by the criticism. In its white paper, it turned time and again to the congressional authorization of Sept. 14, 2001, even though the Congressional Research Service study was particularly skeptical of this line of defense.

The white paper "is not a blank check that says the president can do whatever he wants," said Steven G. Bradbury, an acting assistant attorney general at the Justice Department. But at the same time, he said, the president must use all the tools available to him to fight terrorism.

Oh, Bush is on the run, all right.  Go Times!  Uh huh.

The Osama Tape (With Matthews And Moore)

Osama bin Laden has apparently released a new tape, estimated to have been made in December:

DUBAI, United Arab Emirates, Jan. 19 - Breaking more than a year's silence, Osama bin Laden warned Americans in an audiotape released on Thursday that Al Qaeda was planning more attacks on the United States, but he offered a "long truce" on undefined terms.

A truce?  Because he is winning and wants to let us catch our breath?  [Gregory Djerejian reflects at length].

In related news the manufactured outrage du jour is pretty thin soup - Crooks and Liars has a clip of Chris Matthews comparing Osama to Michael Moore (NOT the other way around), and Peter Daou is agitated.

First, let's extend the transcript a bit to minimize any confusion - Chris Matthews begins by reading this from Bin Laden's statement:

There is no defect in this solution [a proposed truce] other than preventing the flow of hundreds of billions to the influential people and war merchants in America, who supported Bush's election campaign with billions of dollars.

Matthews then says, roughly, "I mean he sounds like an over the top Michael Moore here, if not a Michael Moore. Do you think that sells in America, that this war is being fought for the Daddy Warbucks?"

And let's go to Mr. Daou for a reaction:

DEMAND AN APOLOGY: "Bin Laden sounds like Clint Eastwood" -- "Bin Laden sounds like Ron Silver" -- "Bin Laden sounds like Rush Limbaugh" -- "Bin Laden sounds like Bill O'Reilly"-- "Bin Laden sounds like Mel Gibson" -- "Bin Laden sounds like Bruce Willis" -- "Bin Laden sounds like Michelle Malkin"... Imagine the outrage on the right and in the press (but I repeat myself) if a major media figure spat out those words.

Well, if Mr. Daou can find examples of any of those figures suggesting that the war on terror is being driven by the "war merchants", then the comparison would be apt.  Good luck.

On the other hand, Matthews' extrapolation of Moore's world view does not grab me as out of bounds - for example, a sympathetic reviewer assures us that Fahrenheit 9/11 promoted the Afghanistan oil pipeline theory and the Saudi-Bush connections, and a bit of poking around Michael Moore's website suggests he is more concerned than, say, Clint Eastwood with the profiteering possibilities of the war.

Well - if Osama has chosen to adopt Michael Moore's rhetoric, it would not be the first time.  Bin Laden also made a reference to "The Pet Goat" after Moore popularized that Florida classroom incident in his film.

And why the fuss, anyway?  Moore bashes Bush, Osama bashes Bush - surely the rhetoric might overlap at times, and if Osama is aping Moore, why should that be an outrage to Moore?

Let's put it another way - here is an extended passage form the Bin Laden statement.  I suspect that I could find similar sentiments throughout the editorial pages of this country, not to mention the blogosphere.

Here we go - Osama as aspiring Kos diarist:

In fact, reports indicate that the defeat and devastating failure of the ill-omened plan of the four - Bush, Cheney, Rumsfeld, and Wolfowitz - and the announcement of this defeat and working it out, is only a matter of time, which is to some extent linked to the awareness of the American people of the magnitude of this tragedy.

The wise ones know that Bush has no plan to achieve his alleged victory in Iraq.

If you compare the small number of the dead when Bush made that false and stupid show-like announcement from an aircraft carrier on the end of the major operations, to many times as much as this number of the killed and injured, who fell in the minor operations, you will know the truth in what I am saying, and that Bush and his administration do not have neither the desire nor the will to withdraw from Iraq for their own dubious reasons.

To go back to where I started, I say that the results of the poll satisfy sane people and that Bush's objection to them is false.

Reality testifies that the war against America and its allies has not remained confined to Iraq, as he claims.

In fact, Iraq has become a point of attraction and recruitment of qualified resources.

Is Osama really out of the anti-Bush mainstream with this?  And why would he be - to the extent his audience is the West (rather than, for example, followers in the Muslim world), he is surely savvy enough to strike notes that will resonate with Western anti-war people.

MORE:  Another look at the power of the war merchants in "Why We Fight".  It's hard to argue that Osama is utterly alone on this point.

UPDATE:  Folks who are mad at Chris Matthews ought to be furious with Tucker Carlson.  From Jan 19 "The Situation" (via Lexis News):

CARLSON: The war in Iraq is creating more terrorists than it`s killing. It`s just a war about oil and Halliburton. Sounds awfully familiar. When did Osama bin Laden start getting talking points from the DNC?

Here to discuss the new bin Laden tape, among other things, from Air America Radio, it`s Rachel Maddow, shaking her head preemptively. We haven`t even started talking yet, and already you`re going like that.

RACHEL MADDOW, AIR AMERICA RADIO HOST: I was sitting -- I read the speech, right. I paid attention to this all day. I was sitting upstairs right outside your office, and I was kind of writing out arguments and things that I wanted to talk about.And then on the television, in the corner of my eye, there`s you sitting there, smiling through Joe Scarborough...

CARLSON: Yes.

MADDOW: ... showing Osama, Howard Dean, Osama, John Kerry, Osama, Ted Kennedy. I`m honestly mad at you.

CARLSON: Didn`t it blow your -- didn`t it below your mind?

MADDOW: That`s your take.

CARLSON: Isn`t it uncanny? It`s incredible. Every single talking point. And as I said to Joe, I am in no way comparing the moral -- I am not -- I am not comparing...

MADDOW: I am not comparing this. He uses talking points from the DNC.

CARLSON: It`s incredible.

MADDOW: There`s no comparison.

CARLSON: It`s incredible. You could go through the whole list. I literally expected him to say Hillary in 2008 in the end. I mean, every single line I`ve heard it before. Where is he getting this? How does he get the "New York Times" in his cave is my question.

MADDOW: Here`s my question.

CARLSON: Yes.

MADDOW: Osama bin Laden, the whole mastermind behind 9/11...

CARLSON: Yes.

MADDOW: ... the guy who attacked us and killed thousands of Americans, does another videotape, threatens America.

CARLSON: Yes.

MADDOW: On MSNBC, with Chris Matthews and Joe Scarborough and Tucker Carlson, that`s an occasion to pile on Ted Kennedy. What are you talking about?

CARLSON: It`s interesting. He doesn`t actually...

MADDOW: He threatens the American people.CARLSON: Well, he`s Osama bin Laden.MADDOW: Yes.

CARLSON: He`s behind 9/11. He`s a bad guy. We`re not ignoring that.

MADDOW: Let`s go get Howard Dean.

CARLSON: The substance of this was not really about his threats. Actually, it was much more complicated than that. I`ve read, I think, every public communique he`s come out with, and they`re always about the crusaders and the Jews and about how Israel is evil and we`re evil and we`re going to kill you all.This was not about that, actually. He was making a political case. You read the whole thing.

MADDOW: Yes.

CARLSON: It was about how the war in Iraq is doomed because the American people don`t support it. And the war in Iraq was waged in the first place because the warmongers and Halliburton and the crazed neo-cons were behind it. And they, you know, changed Bush`s mind and got him to support.

MADDOW: That`s like...

CARLSON: Do you recognize that argument?MADDOW: No.

CARLSON: I do.

So do I.

STILL MORE:  Get mad at Joe Scarborough and Kellyanne Conway, who is, Joe tells us, "a Republican Party strategist and the president of the Polling Company":

SCARBOROUGH: If you look at a lot of the things that Osama bin Laden said, it sounds like an awful lot like what we hear from a lot of the president`s political enemies domestically. 

CONWAY: Well, indeed.  Joe, if you held a piece of tissue paper between some of the comments that bin Laden said today and some of the comments that the president`s detractors say, it would be very difficult to stick more than a piece of tissue paper between them. There`s not much of a difference.

...SCARBOROUGH: Of some of those comments, and saying that the president lied to get us in the war, lied to get us in there because of oil. Again, it sounds too much not only like what a lot of Democratic senators have been saying, but also what one or two movie-makers have been saying over the past several years.

Hey, just bury MSNBC with emails!  And someone might want to check the other networks as well - either the MSNBC chaps are staggeringly original, or they were, collectively, stating the obvious.

UPDATE 2:  Ted Barlow deserves an answer, but right now my intentions are better than my time menagement.

The NSA Eavesdropping Briefings - Too Exclusive To Be Legal?

Scott Shane of the Times returns to an issue raised by Congressfolk Jane Harman, as reported on January 5 - did President Bush comply with the requirements of the National Security Act of 1947 when he restricted the briefings on the NSA warrantless eavesdropping to  the House and Senate leadership and Intelligence committees leaders, shutting out the full committees?

From the Times:

WASHINGTON, Jan. 18 - A legal analysis by the nonpartisan Congressional Research Service concludes that the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are "inconsistent with the law."

The analysis was requested by Representative Jane Harman, the ranking Democrat on the House Intelligence Committee, who said in a Jan. 4 letter to President Bush that she believed the briefings should be open to all the members of the House and Senate Intelligence Committees.

Instead, the briefings have been limited to the Republican and Democratic leaders of the House and Senate and of the Intelligence Committees, the so-called Gang of Eight.

...

The Congressional Research Service memorandum, sent to the Intelligence Committee on Wednesday, explores the requirement in the National Security Act of 1947 that the committees be kept "fully and currently informed" of intelligence activities. It notes that the law specifically allows notification of "covert actions" to the Gang of Eight, but says the security agency's program does not appear to be a covert action program.

As a result, the memorandum says, limiting the briefings to just eight members of Congress "would appear to be inconsistent with the law."

The memorandum, written by Alfred Cumming, a national security specialist at the research service, does lay out several possible defenses for the administration's position. "The executive branch may assert that the mere discussion of the N.S.A. program generally could expose certain intelligence sources and methods to disclosure," it says.

I had previously excerpted the following caveat in the Act, so there certainly appears to be latitude for interpretation.  It is also worth noting that Congress is normally expected to rise in defense of its institutional prerogatives.

From the Act, 413b (c) (2):

(2) If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.

Since the President has been reauthorizing this program every 45 days, he may also have presented a rationale to limit Congressional participation in the same finding.  Absent a Congressional objection, I would bet that the Administration's position is easily defensible.

Rep. Harman wins a smile with this:

Of the Congressional Research Service analysis, Ms. Harman said, "It's a solid piece of work, and it confirms a view I've held for a long time."

"A long time"?  That is a bit vague - right now it seems like a long time since my last cup of coffee.  However, if Ms. Harman has been harboring secret concerns about the limited briefing audience for months or years, well, speak up!  If your job is Congressional oversight, feel free to hop to it.  Remember, if Cheney and the NSA briefers were psychic, a lot of this intel effort would not be necessary, now would it?

UPDATE:  Oh, this is pretty funny.  From the Times:

The memorandum, written by Alfred Cumming, a national security specialist at the research service...

From the estimable Cecil Turner we learn that Mr. Cumming donated $1,250 to the Kerry campaign in 2004.   Not that there is anything wrong with that!  But how did the Times miss it?

STILL MORE:  The Anon Lib makes the good point that the portion of the statute excerpted above comes from the section covering covert actions, and it does not appear that the NSA program would qualify as such:

e) “Covert action” defined

As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

 

Now Ask Them About Coercive Interrogation

From the Times comes this account of the male lust for vengeance:

When Bad People Are Punished, Men Smile (but Women Don't)

 

By ELISABETH ROSENTHAL

 

ROME, Jan. 18 - In "Don Juan" Lord Byron wrote, "Sweet is revenge - especially to women." But a study released Wednesday, bolstered by magnetic resonance imaging, suggests that men may be the more natural avengers.

In the study, when male subjects witnessed people they perceived as bad guys being zapped by a mild electrical shock, their M.R.I. scans lit up in primitive brain areas associated with reward. Their brains' empathy centers remained dull.

Women watching the punishment, in contrast, showed no response in centers associated with pleasure. Even though they also said they did not like the bad guys, their empathy centers still quietly glowed.

The study seems to show for the first time in physical terms what many people probably assume they already know: that women are generally more empathetic than men, and that men take great pleasure in seeing revenge exacted.

 

Well may you ask - just what did the 'bad guys" do to deserve this?

Dr. Singer's team was simply trying to see if the study subjects' degree of empathy correlated with how much they liked or disliked the person being punished. They had not set out to look into sex differences.

To cultivate personal likes and dislikes in their 32 volunteers, they asked them to play an elaborate money strategy game, where both members of a pair would profit if both behaved cooperatively. The ranks of volunteers were infiltrated by actors told to play selfishly.

Volunteers came quickly to "very much like" the partners who were cooperative, while disliking those who hoarded rewards, Dr. Stephan said.

Effectively conditioned to like and dislike their game-playing partners, the 32 subjects were placed in scanners and asked to watch the various partners receive electrical shocks.

On scans, both men and women seemed to feel the pain of partners they liked. But the real surprise came during scans when the subjects viewed the partners they disliked being shocked. "When women saw the shock, they still had an empathetic response, even though it was reduced," Dr. Stephan said. "The men had none at all."

Furthermore, researchers found that the brain's pleasure centers lit up in males when just punishment was meted out.

"Just punishment"?  I expect I know what they mean, but really - it's a game.

The 2002 INR Memo on Uranium

Via Judicial Watch, the NY Times has received the declassified version of the 2002 INR memo questioning the notion that Niger had sold 500 tons of yellowcake to Iraq.

As Eric Lichtblau explains, there is not a lot of news here; the memo was described thusly in the 2004 SSCI report:

(U) On March 1, 2002, INR published an intelligence assessment, Niger: Sale of Uranium to Iraq Is Unlikely. The INR analyst who drafted the assessment told Committee staff that he had been told that the piece was in response to interest from the Vice President's office in the alleged Iraq-Niger uranium deal. The assessment reiterated INR's view that France controlled the uranium industry and "would take action to block a sale of the kind alleged in a CIA report of questionable credibility from a foreign government service." The assessment added that "some officials may have conspired for individual gain to arrange a uranium sale," but considered President Tandja's government unlikely to risk relations with the U.S. and other key aid donors. In a written response to a question from Committee staff on this matter, the Department of State said the assessment was distributed through the routine distribution process in which intelligence documents are delivered to the White House situation room, but State did not provide the assessment directly to the Vice President in a special delivery.

Ambassador Joe Wilson manages to overcome his publicity shyness long enough to deliver the following quip to the Times:

Mr. Wilson said in an interview that he did not remember ever seeing the memo but that its analysis should raise further questions about why the White House remained convinced for so long that Iraq was trying to buy uranium in Africa.

"All the people understood that there was documentary evidence" suggesting that the intelligence about the sale was faulty, he said.

"All the people"?  Perhaps the Ambassador could check whether his wife is available to explain the CIA position, which, per the SSCI report, was at odds with that of the INR:

Throughout the time the Niger reports were being disseminated, the CIA Iraq nuclear analyst said he had discussed the issue with his INR colleague and was aware that INR disagreed with the CIA's position. He said they discussed Niger's uranium production rates and whether Niger could have been diverting any yellowcake. He said that he and his INR counterpart essentially "agreed to disagree" about whether Niger could supply uranium to Iraq.

The CIA analyst said he assessed at the time that the intelligence showed both that Iraq may have been trying to procure uranium in Africa and that it was possible Niger could supply it. He said his assessment was bolstered by several other intelligence reports on Iraqi interest in uranium from other countries in Africa.

Oh, well.  This article does remind me of another point I belabored relating to Mr. Wilson and the outing of his wife - the INR had been at loggerheads with the CIA about Saddam's nuclear capabilities in the run-up to the war.  In addition to any normal sense of "we were right, they were wrong" that might have prompted a bit of chest-thumping at the INR in June of 2003, the senior officials at State had other reasons for pique - the INR dissent to the CIA / DIA position was mis-placed in the wrong section of the 2002 National Intelligence Estimate, and Colin Powell's speech to the United Nations, with George Tenet famously in attendance, did not exactly hold up well to subsequent discoveries.

So might some senior State Dept. folks have been inclined to take a few shots at the CIA as the Niger-uranium story unfolded in June and July of 2003?

Per the SSCI, the CIA initiated the Wilson trip and the INR thought it would be an inconclusive waste of time.  Might folks at State have belittled the Wilson trip to Bob Woodward, Walter Pincus, Nick Kristof, Andrea Mitchell, or other reporters?  Might they have also mentioned that the time-waster was set up by the wife of the guy who brought back the report the CIA was using to promote their position?

I continue to believe it is highly likely.  But someone would have to ask these reporters (and get an answer) for the public to find out.

MORE:  The Financial Times had a boost for the CIA side - per their account, Libya had more uranium than was accounted for in Niger's official records; black market production at closed mines is the theory on offer.  That said, I cannot find the IAEA report to which this June 2004 article refers.

Typepad Out Again?

Testing - where is my last post, I wonder?

Connecting The Dots - Booooring...

The NY Times delivers the latest on the NSA warrantless eavesdropping program - it generated far too many dead-end leads to be useful to the FBI.

WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

"Virtually all" were useless?  Uh Huh.  And since, to pick an odd example, most New York City cops go through a day without making an arrest, I guess they are virtually useless.
Or, as an even more bizarre analogy, I guess seatbelts in automobiles are virtually useless, as are airbags.

The article does provide some useful perspective:

The differing views of the value of the N.S.A.'s foray into intelligence-gathering in the United States may reflect both bureaucratic rivalry and a culture clash. The N.S.A., an intelligence agency, routinely collects huge amounts of data from across the globe that may yield only tiny nuggets of useful information; the F.B.I., while charged with fighting terrorism, retains the traditions of a law enforcement agency more focused on solving crimes.

"It isn't at all surprising to me that people not accustomed to doing this would say, 'Boy, this is an awful lot of work to get a tiny bit of information,' " said Adm. Bobby R. Inman, a former N.S.A. director. "But the rejoinder to that is, Have you got anything better?"

Several of the law enforcement officials acknowledged that they might not know of arrests or intelligence activities overseas that grew out of the domestic spying program. And because the program was a closely guarded secret, its role in specific cases may have been disguised or hidden even from key investigators.

Hey, maybe this program has merely represented four years of wheel-spinning kept alive only by bureaucratic momentum and a CYA mentality - the NSA was whacked by the 9/11 Commission (Jon Henke has excerpts) and won't be fooled again.

Or maybe the NSA program really has scored some successes which are being kept quiet.  Who thinks it would be a great idea if the Administration explained exactly which plots were disrupted, so that Al Qaeda planners can be crystal clear about the circumstances under which their communications were compromised?

And there is an unstated benefit to this program - the NSA effort makes AL Qaeda work harder to communicate, which may make their plotting a bit less fluid, and which (presumably) introduces new opportunities to disrupt them.  If, for example, we capture a courier with a flopy disk, can we attribute that to the possibility that Al Qaeda is afraid to use the telephone?

I continue to wish that the Congressional intelligence oversight committees would do their job, IN SECRET, and give the rest of us some bi-partisan assurance that this program is legal and worthwhile.  Whether that is a realistic hope given the climate in Washington, and what the sensible alternative to bipartisan adult institutional oversight might be, I don't know.

MORE:  Since you ask, no, I don't recognize either Lowell Bergman or Don Van Natta in that byline; Eric Lichtblau and Scott Shane have been leading on this story at the Times, with James Risen of course.

Mr. Bergman has had only six bylines in the past year; Mr. Van Natta appears to be the Times man in London, which would cover the British connection in this story.

Red On Red (Ongoing)

Dexter Filkins and Sabrina Tavernise of the Times continue their coverage of the rift in Iraq  between Sunni insurgents and Al Qaeda foreign fighters.

Jan 12:

Local Insurgents Tell of Clashes With Al Qaeda's Forces in Iraq

 

By SABRINA TAVERNISE and DEXTER FILKINS

 

BAGHDAD, Iraq, Jan. 11 - The story told by the two Iraqi guerrillas cut to the heart of the war that Iraqi and American officials now believe is raging inside the Iraqi insurgency.

In October, the two insurgents said in interviews, a group of local fighters from the Islamic Army gathered for an open-air meeting on a street corner in Taji, a city north of Baghdad.

Across from the Iraqis stood the men from Al Qaeda, mostly Arabs from outside Iraq. Some of them wore suicide belts. The men from the Islamic Army accused the Qaeda fighters of murdering their comrades.

"Al Qaeda killed two people from our group," said an Islamic Army fighter who uses the nom de guerre Abu Lil and who claimed that he attended the meeting. "They repeatedly kill our people."

The encounter ended angrily. A few days later, the insurgents said, Al Qaeda in Mesopotamia and the Islamic Army fought a bloody battle on the outskirts of town.

The battle, which the insurgents said was fought on Oct. 23, was one of several clashes between Al Qaeda and local Iraqi guerrilla groups that have broken out in recent months across the Sunni Triangle.

American and Iraqi officials believe that the conflicts present them with one of the biggest opportunities since the insurgency burst upon Iraq nearly three years ago. They have begun talking with local insurgents, hoping to enlist them to cooperate against Al Qaeda, said Western diplomats, Iraqi officials and an insurgent leader.

It is impossible to say just how far the split extends within the insurgency, which remains a lethal force with a shared goal of driving the Americans out of Iraq. Indeed, the best the Americans can hope for may be a grudging passivity from the Iraqi insurgents when the Americans zero in on Al Qaeda's forces.

But the split within the insurgency is coinciding with Sunni Arabs' new desire to participate in Iraq's political process, and a growing resentment of the militants. Iraqis are increasingly saying that they regard Al Qaeda as a foreign-led force, whose extreme religious goals and desires for sectarian war against Iraq's Shiite majority override Iraqi tribal and nationalist traditions.

While American and Iraqi officials have talked of a split for months, detailed accounts of clashes were provided by men claiming to be local insurgents.

Jan 7:

Americans Said to Meet Rebels, Exploiting Rift

 

By DEXTER FILKINS and SABRINA TAVERNISE

BAGHDAD, Iraq, Jan. 6 - American officials are talking with local Iraqi insurgent leaders to exploit a rift that has opened between homegrown insurgents and radical groups like Al Qaeda, and to draw the local leaders into the political process, according to a Western diplomat, an Iraqi political leader and an Iraqi insurgent leader.

Clashes between Iraqi groups and Al Qaeda have broken out in several cities across the Sunni Triangle, including Taji, Yusefiya, Qaim and Ramadi, and they appear to have intensified in recent months, according to interviews with insurgents and with American and Iraqi officials.

Ms. Tavernise also had a story on this last June.

 

 

Bringing Down The House

Jeff Toobin of The New Yorker comments on the likely strategy of the Lewis Libby defense team in the Plame investigation:

At the trial, Libby’s team will try to undermine the journalists’ credibility by challenging them on everything from sloppy note-taking to evidence of bias. “This guy is on trial for his freedom, and it’s not his job to be worried about the rights of the witnesses against him,” a person close to Libby’s defense team said. “There are going to be fights over access to the reporters’ notes, their prior history and credibility, and their interviews with other people. By the time this trial is over, the press is going to regret that this case was ever brought.”

And how much damage might Libby's team be able to do?  I have no idea, and part of the answer will depend on how much latitude the judge allows the defense in deposing witnesses from the media.  However, as a matter of SPECULATION, readers might be interested in my guesses as to just how badly the Libby trial might damage the stature of the news media.

Are those enough caveats?  Then on to the guesswork - the case can be made that the Libby trial will become the trial of the (new) century and shatter the credibility of the media in a way that makes RatherGate look as embarrassing and unimportant as on on-air sneeze.

Very briefly, here are the three main points:

(1)  It *MAY* be the case that Tim Russert and Andrea Mitchell of NBC News are conspiring to conceal misleading and possibly perjured testimony by Tim Russert to Special Counsel Fitzgerald.  Since that testimony was central to the indictment and resignation of the Vice President's Chief of Staff, this little glitch in Russert's testimony has had dramatic (and unforeseen) consequences. 

Their *POSSIBLE* motive - the protection of other sources, possibly including (I am serious) Alan Greenspan and Dick Cheney.

(2)  The NY Times will take a hit when (*IF*) Nick Kristof is forced to admit that he was aware of Valerie Plame's CIA connection prior to the publication of the Novak column, and that he had previously used Ms. Plame as a source for some columns.  Since Mr. Kristof's columns of May 6 and June 13 2003 triggered the Wilson story, his previously undisclosed involvement will raise eyebrows.  To say the least.

(3)  The Washington Post will find another Bob Woodward on their hands when (*IF*) Walter Pincus is forced to admit that the Plame leak he received on July 12 2003 was *not* his first leak of the news that Wilson's wife was at the CIA.  [UPDATE: SUbsequently denied by Pincus to CJR] We will learn (I am *GUESSING*) that Mr. Pincus was apprised of her status through State Department (or possibly CIA) sources back in June 2003.  Why did he keep quiet, and how did the WaPo miss this?  Well, why did Woodward keep quiet?  Source protection.

Are all three of these scenarios going to unfold as I suspect?  Presumably not.  But if the Libby team gets lucky with even one of them, the Libby trial will be deeply problematic for Fitzgerald, and for the media.  And for the rest of us, perhaps these ideas can help some enterprising journalists re-direct their attention and break (or close out) these possible stories.

Clearly the most dramatic allegation I am making involves Russert and Mitchell, so let's start there.

Why Not Just Get FISA Warrants?

Back on the subject of the NSA warrantless eavesdropping, we have some intriguing hypotheticals to trot out.

Let's give Brit Hume a chance to set the stage - here he is interviewing Jane Harman, ranking Democrat on the House Intelligence Committee:

HUME: So if you're listening in on an Al Qaida suspect overseas, and you're listening to all of his or her, as the case maybe, phone conversations, and suddenly he's on the phone to someone in the United States, or he's in the United States and you're listening, and he's talking to somebody in the United States, do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized, or to go there later, or what?

HARMAN: Well, I think that in the -- those conversations in the United States would be a perfect basis to get court approval. And there is a 72-hour delay mechanism in the FISA statute. So my answer to you is, number one, it is very important to learn the plans and intentions of our enemies.And number two, we can do that within a legal framework that would give Americans comfort and actually give our court system comfort that the Fourth Amendment is being observed and that our system of laws that Congress has passed, including FISA, which was supposed to be the exclusive way to do electronic surveillance on Americans in America, are being observed.

Let's give Mr. Hume modified props - assuming it is the AL Qaeda operative being targetted while overseas, and his US contact is incidental, a warrant would seem to be unnecessary, based on FISA 1801(f).

However, Mr. Hume modified his question to put both ends of the call within the US, so let's allow him his hypothetical in order to make another point:

Folks seem to be thinking of these taps in terms of real time, with agents wearing headphones listening in as our enemies chat.

However, let me propose my own hypothetical: 

Let's *ASSUME* that the NSA *records* every digital transmission from Afghanistan to the US that they can get ahold of.  Decrypting and translating take time, so initially they simply maintain a huge vault of raw intercepts.  Let's imagine that in June, a telephone of no apparent interest in Kabul dials a phone number of no apparent interest in Manhattan.

That phone in Manhattan is then used to dial a number in Washington DC; the call is also recorded but not decrypted.

A month goes by.  Then, come July, Osama himself calls the formerly-uninteresting phone in Kabul.  Wow!  The NSA is interested now, you betcha!

So, some questions for spies and lawyers:

(a)  Is it now worth the computer time to decrypt and translate the June calls from Kabul to Manhattan? 

Easy - of course it is, and I think there is broad agreement that, since one leg originated overseas and the interception occurred overseas (broadly defined, perhaps, to include the border), FISA warrants are not necessary.

(b)  Will spychasers want to decrypt the Manhattan-Washington DC phone call recorded in June?

I promise, the questions will get more difficult - as to decrypting the call to Washington, of course they will want to.

(c)  Can the NSA invoke the 72 hour rule and get a retrospective warrant for that call?

I don't know, but I do know that a lot more than 72 hours have passed since the recording was made.  Can the NSA argue that "interception" includes decryption?  Would that fly?  I don't know (but I would guess not).

So, what is a President to do?

It may be that our data storage capability simply does not mesh well with FISA.  Let's go back to 1801(f) for the definition of surveillance:

“Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication...

Emphasis added.  One might argue that, until the call has been decrypted and evaluated, the "contents" have not been captured - all that has been stored are digital ones and zeros.  If a tree falls in the forest and no one is there to hear it, did it make a sound?

Consequently, the act of "intercepting" and storing the call in digital form was legal (one might argue).  And decrypting it later?  Well, a probable cause argument is a lot easier if the connection to Osama can be shown.

Now, I am not a lawyer, and some of these points may have been settled.  But I'll say this without fear of contradiction - my hypothetical is a lot more interesting than Brit Hume's.

AG Gonzalez alluded to difficulties in amending FISA in ways that covered The Program without revealing it.  The second hypothetical may be the sort of thing he had in mind.  Or at least, it suggests ways in which the problem might be more complicated than folks realize.

MORE:  Keep Legal Eagle Orin Kerr in the mix for NSA coverage.

A Crumb For The Plamaniacs

The WaPo teases us with a near non-story on Tim Russert's legal maneuverings in the Plame case:

Russert Resisted Testifying on Leak

Lawyers for NBC News reporter Tim Russert suspected in the spring of 2004 that his testimony could snare Vice President Cheney's top aide, I. Lewis "Scooter" Libby, in a lie and Russert resisted testifying at the time about private conversations with Libby, according to court papers released yesterday.

Russert was aware that a special prosecutor probing the leak of a CIA operative's name knew of his summer 2003 telephone conversation with Libby, and that Libby had released him from any promise of confidentiality. But Russert, the Washington bureau chief for NBC News and host of "Meet the Press," and his attorneys argued in previously sealed court filings in June 2004 that he should not have to tell a grand jury about that conversation, because it would harm Russert's relationship with other sources.

No kidding.  Now, one might wonder, why did Russert suspect that his testimony might "snare" Libby in a lie?  Did Russert have a sneak preview of the Libby story?  As best I can tell, that is answered in the last paragraph:

It "appears that Mr. Russert's testimony is sought solely because the Special Prosecutor believes that his recollection of a telephone conversation with an Executive Branch official is inconsistent with that official's statements," they wrote.

Well, let's resist the temptation to say "Duh".  Look, either Russert's testimony was going to jibe with Libby's, or it wasn't.  It was not much of a guess for Russert's lawyers to imagine that their client might end up as a star witness in a perjury trial. 

[UPDATE:  Per the actual court filings, that is essentially what was going on; Russert's team argued that, since Russert had provided a deposition denying that he had *received* a Plame leak, he could not provide evidence of a crime; Fitzgerald said, in effect, I bet you can, Big Fella; and Russert's lawyers concluded that the only crime on offer was perjury.  Good guess.]

On the other hand, Walter Pincus and Glenn Kessler of the WaPo managed to testify and confirm Libby's story.  So did Matt Cooper of TIME, more or less - Libby and Cooper are in agreement that Cooper raised the subject of Plame and told Libby about her CIA connection; views differ on whether Libby replied to the effect of "Yeah, I've heard that, too", or "Yeah, I've heard that from other reporters, too".

Ms. Leonnig of the WaPo is cute with this:

Fitzgerald accused Libby of lying to investigators when he said he believed he heard about Valerie Plame's CIA role from Russert in their July 2003 telephone conversation. Russert testified that they never discussed Plame.

So he says.  However, did Russert say anything about "Wilson's wife" being at the CIA?  His very specific denial danced around that obvious question, which remains unanswered, and, in Ms. Leonnig's tender hands, unexplored.  [That said, as we have noted previously the indictment certainly suggests that Fitzgerald believes Russert and Libby did not discuss Wilson's wife - see UPDATE].

Well, Adam Liptak of the Times actually kicked the tires of this Russert puzzle back in July; since the Times has this court document as well, perhaps he will try again (Right, during the week Alito has his hearing?)

Bah.  Where can I get that court document?  Help me, please!

UPDATE:  Oh, you mean the docs are at the Court's website?  Not when I looked there!

And there is some cool stuff here; already my blood pressure is rising.

Here we go:

Here we stay - the Text Copy seems to be turned off.  Well, then - per page 5 of the .pdf file, it seems clear that Libby had testified that he called to complain to Russert in his capacity as NBC Bureau Chief; that jibes nicely with Russert's story.  Fitzgerald then adds that he wants to ask whether "Mr. Russert imparted information concerning the employment of Ambassador Wilson's wife to Mr. Libby or whether the employment of Wilson's wife was otherwise duscussed in that conversation".

Well, well.  Fitzgerald (and presumably, Libby) were quite clear that the topic was "Wilson's wife", not "Valerie Plame".  Mr. Russert's very specific denial looks even more puzzling.

All that said, Fitzgerald did deliver an indictment essentially on the strength of Russert's testimony.  Point 20 of the factual recitation is this:

20. On or about July 10, 2003, LIBBY spoke to NBC Washington Bureau Chief Tim Russert to complain about press coverage of LIBBY by an MSNBC reporter. LIBBY did not discuss Wilson's wife with Russert.

And subsequently:

32. It was part of the corrupt endeavor that during his grand jury testimony, defendant LIBBY made the following materially false and intentionally misleading statements and representations, in substance, under oath:

a. When LIBBY spoke with Tim Russert of NBC News, on or about July 10, 2003:

i. Russert asked LIBBY if LIBBY knew that Wilson's wife worked for the CIA, and told LIBBY that all the reporters knew it; and

ii. At the time of this conversation, LIBBY was surprised to hear that Wilson's wife worked for the CIA;

...

33. It was further part of the corrupt endeavor that at the time defendant LIBBY made each of the above-described materially false and intentionally misleading statements and representations to the grand jury, LIBBY was aware that they were false, in that:

a. When LIBBY spoke with Tim Russert of NBC News on or about July 10, 2003:

i. Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and

ii. At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA; in fact, LIBBY had participated in multiple prior conversations concerning this topic, including on the following occasions:

OK - even though Russert has never denied it publicly, he must have convinced Fitzgerald.

However, a little question and a big question remain:

(Little) Why won't Russert just issue a less carefully phrased, more comprehensive explanation?

(Big)  Regardless of what he said to Libby, did Russert in fact know, or had he heard suggestions, that Joe Wilson's wife was at the CIA?  This chat with Tim Russert and Andrea Mitchell from Oct 2005 reads like the newsroom equivalent of "Waiting for Fitzgerald" as they dance around that topic.

BRINGING DOWN THE HOUSE: Jeralynn Merritt sneaks Jeff Toobin's New Yorker piece about the Libby defense strategy: "By the time this trial is over, the press is going to regret that this case was ever brought.”

No kidding.  The Russert testimony looks like "he said/he said", with a twist - if Andrea Mitchell, Russert's underling, takes the stand and admits that, as she said in Oct 2003, she did know about Wilson and Wife, then Russert's credibility may not be enough to send a man to jail.

George Will On The Post-DeLay House Reps

George Will writes on life after DeLay:

Anyway, catalyzed by DeLay's decision to recede, House Republicans, perhaps emboldened by the examples of Afghanistan and Iraq, are going to risk elections.

Mr. Will delivers a baseball reference to help carry us through until springtime:

The national pastime is no longer baseball, it is rent-seeking -- bending public power for private advantage. There are two reasons why rent-seeking has become so lurid, but those reasons for today's dystopian politics are reasons why most suggested cures seem utopian.

And he concludes with an early pick for House Majority Leader:

Roy Blunt of Missouri, the man who was selected, not elected, to replace DeLay, is a champion of earmarks as a form of constituent service. If, as one member says, "the problem is not just DeLay but 'DeLay Inc.' " Blunt is not the solution. So far -- the field may expand -- the choice for majority leader is between Blunt and John Boehner of Ohio. A salient fact: In 15 years in the House, Boehner has never put an earmark in an appropriations or transportation bill.

Set A Lefty To Catch...

Suspension of critical faculties has commenced (resumed?  continued?) on the left - Atrios has posed a challenge question about the NSA warrantless eavesdropping; rather than strain their imaginations to come up with an answer, we note high fives on the left (well, if Glenn Greenwald and Jane Hamsher are King and Queen of the left, anyway...).

The question:

Explain to me, in your best wingnutnese, how exactly it damages national security to reveal the fact that we spy on people without secret warrants instead of the fact that we spy on people with secret warrants?

Well.  You will not find a more ardent lefty than Gary Farber, so let's hand him the mike for an answer:

As I've said elsewhere, many many many times now, in varying words, since December 20th, in answer to the endless mantra of "but why couldn't they just get FISA warrants?": bottom line: if you're doing a multiplexdata-mining pattern analysis on tens of thousands or more people, shifting by possibly tens of thousands of people per day, or more, you can't get warrants. It's not humanly possible.

Which, as I keep explaining, only makes the threat exponentially larger than most non-tech oriented left/lib/progressives seem to understand, with this antediluvian focus on "wiretaps" and "why can't you get a FISA warrant?" That's a question that was entirely sensible when we all asked it last month. It's long been answered and answered and answered and answered.

Or let's put it another way - to explain why warrants wouldn't work would require a fairly detailed description of "The Program", which some folks considered a bad idea.

Well, let me take a turn and answer a question with a question or three:

(1) Why did Jane Harman, ranking Democrat on the House Intel Committee, write this last December in response to the Times story?

Dec 21, 2005

Washington , D.C. – Congresswoman Jane Harman (D-CA), Ranking Member on the House Intelligence Committee, today issued the following statement:

“As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities.

(2) Why did Sen. Rockefeller, ranking Dem on the Senate Intel Committee, hand-write a letter to Cheney and his files about The Program rather than laugh out loud, exclaim "There is nothing new here!", and demand that the full Senate Intel Committee be brought into the briefings?

(3) Why did the Time sit on this story for a year after being told there were sensitive national security concerns?  Why did they write (Risen/Lichtblau, Dec 16, 2005) that:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Possible unifying answer - Harman, Rockefeller, and the editors of the Times are all dupes.  Uh huh.  Another possible answer is, they know enough about this program to know that there might still be some secrets there.

Folks who think that the catalog of Atrios's ignorance and the limits of his imagination define the boundaries of human endeavor will remain bemused by his question.  For myself, I am convinced that I don't know enough about this program to have any solid idea what security issues might be involved, so I am relying on the good, if unsteady, judgments of elected representatives such as Harman and Rockefeller.

UPDATE:  I am boldy promoting myself out of the comments section.  Let's take for granted that Al Qaeda planners have been worried for years about the possibility that their electronic communications might be intercepted.  What, then is the harm in the original NY Times story? 

Well, dare we presume that after four years The Proragm (of NSA warrantless eavesdropping) has show results?  MS. Harman seems to think so.  Consequently, three ideas spring to mind:

(1) Suppose, over the last few years, a few Al Qaeda plots have gone sour due to The Program. The after-action folks at Al Qaeda may wonder What Went Wrong - for example, did a defector rat them out, did a money trail get traced, were they videotaped while buying explosives, what?

A series of Times front pagers highlighting a successful program of communications intercepts may provide them a helpful clue and let them focus on their real weakness, rather than encouraging them to waste time and resources trying to plug fifteen possible non-leaks.

(2) The AQ communication strategy presumably balances flexibility, speed, and security, using, for example, some mix of couriers and electronics. A big Times front pager or ten might prompt them to re-think the mix. That could be a good thing, if their revised procedures are unduly cumbersome. But it might not be, if their more-secure new system lets them evade detection.

(3) Any communication sysytem is susceptible to (a) bad design; and (b) bad implementation. For example, once we broke the Enigma code in WWII, the most diligent radio operator in Germany could not secure their communications because the basic design was flawed.

However - AQ may have a well-designed system, but it is still liable to human error due to laziness, stupidity, nerves, or whatever. For example, some fool who just couldn't resist calling Mom once a week might have blown a plot a year ago (NO, I have no idea, nor do you).

Today, even with three weeks of reminders on the NY Times front page that THE NSA IS LISTENING, a similar AQ a-hole might be calling Mom right now. However, that sort of lucky break is currently just a bit less likely - presumably, the AQ people who worry about security have been screaming their heads off to remind the rest to button everything down.

If these NY Times stories have (1) provided useful after-action intel to AQ; (2) prompted a sensible re-design of the AQ comm system; or (3) prompted more diligent implementation of an already well-designed system, then we have been hurt.

MORE: Jane Harman spoke with Brit Hume:

Joe Klein To Liberal Dems: Come Home (To Planet Earth)

Joe Klein explains that liberal Dems have lost touch with the country on the NSA warrantless eavesdropping story:

A dodgy response at best, but one invested with a larger truth. For too many liberals, all secret intelligence activities are "fruit," and bitter fruit at that. The government is presumed guilty of illegal electronic eavesdropping until proven innocent. This sort of civil-liberties fetishism is a hangover from the Vietnam era, when the Nixon Administration wildly exceeded all bounds of legality—spying on antiwar protesters and civil rights leaders.

Henry Kissinger even wiretapped his own aides. But the "all fruit" assumption doesn't take into account the strict constraints placed on the intelligence community after the Nixon debacle, or the lethally elusive nature of the current terrorist threat. The liberal reaction is also an understandable consequence of the Bush Administration's tendency to play fast and loose on issues of war and peace—rushing to war after overhyping the intelligence on Saddam Hussein's nuclear-weapons program, appearing to tolerate torture, keeping secret prisons in foreign countries and denying prisoners basic rights. At the very least, the Administration should have acted, with alacrity, to update the federal intelligence laws to include the powerful new technologies developed by the NSA.

But these concerns pale before the importance of the program. It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.

There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them—but also, on the plus side, hampering their ability to communicate with one another.

Pelosi made clear to me that she considered Hayden, now Deputy Director of National Intelligence, an honorable man who would not overstep his bounds. "I trust him," she said. "I haven't accused him of anything. I was, and remain, concerned that he has the proper authority to do what he is doing." A legitimate concern, but the Democrats are on thin ice here. Some of the wilder donkeys talked about a possible Bush impeachment after the NSA program was revealed.

File this under "A Government of Men, Not of Laws": Gen. Hayden has taken an oath to uphold the Constitution (as have Bush and Cheney).  Now, my friends on that left may not be particularly heartened by the reminder that Bush's personal oath is involved with the NSA warrantless eavesdropping.

However - did Gen. Hayden really throw over many years of service to his country, under both Democrats and Republicans, simply because Bush ordered him to?  Did the entire NSA abandon its "don't spy on Americans" ethos simply because Dick Cheney is an intimidating presence?

Let's borrow from Scott Shane of the NY Times, writing last December:

The episode could revive old fears that the secret agency is a sort of high-tech Big Brother. It was such fears - based on genuine abuses before the mid-1970's, hyperbolic press reports and movie myths - that General Hayden worked to counter as the agency's director from 1999 until last April.

"The image of N.S.A. has been muddied considerably by this revelation," said Matthew M. Aid, an intelligence historian who is writing a multiple-volume history of the agency. Mr. Aid said several agency employees he spoke with on Friday were disturbed to learn of the special program, which was known to only a small number of officials.

"All the N.S.A. people I've talked to think domestic surveillance is anathema," Mr. Aid said.

Emphasis added - did the entire agency go sour on 9/11?

There is an alternative view, of course - folks at the NSA may have believed they were operating inside the law.  Certainly Gen. Hayden himself was in a position to judge Congressional reaction, since he delivered some of the key briefings, and, apparently, heard very little negative feedback.

William Arkin of the WaPo joins in with the "silence gives consent" view - after four years of acquiescence, why is Congress suddenly whinging about the NSA?  Did someone switch the Congressional coffee-brewer from decaf to regular?  Not quite:

I think that Rep. Harman is going to find that the President indeed acted under his authority in the Constitution, under the National Security Act, and under a web of other statutes, including implicit Congressional consent. If Rep. Harmon desires to rewrite the National Security Act for the modern era, she'd have my support. But short of changing existing law and implementing better rules for Congressional oversight of secret programs, little will come of the NSA scandal.

The problem is that the Congress has become so co-opted into the secret world that it has sacrificed its own Constitutional independence and authority.

OK, so count Mr. Arkin among those who think the program may be legal.  For myself, I am in agreement with the Congressional researchers who concluded that the program is firmly in a grey area:

President Bush's rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a Congressional analysis released Friday.

The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Mr. Bush act within the law when he ordered the National Security Agency, the country's most secretive spy agency, to eavesdrop on some Americans?

The report, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous doubts about the power to bypass Congress in ordering such operations, saying the legal rationale "does not seem to be as well grounded" as the administration's lawyers have argued.

The governmental folks with the strongest insitutional imperative to argue that the Executive Branch exceeded its authority are not sure whether the President did so.

Well, I am not sure either, nor have I been.

Check Out The "Bloggies"

Nominations are open for the "2006 Bloggies".  I need to get out more - I scarcely recognize any of last year's winners, and it does look like a lefty thing, so...

Since there are lots of categories, and I heard about this at Jeralyn Merritt's fabulously designed site, here are my nominations:

"Best At Keeping Her Head While All About Her Others Are Losing Theirs" - Jeralyn Merritt of TalkLeft.  If that category is closed, try for something simpler like "Best Blog".

"Best New Blog That Has Been Kicking Ass And Taking Names For So Long They Seem Like An Old Blog" - That would be the fine crew at firedoglake.   Or hey, put them up for Best Group Blog and frustrate the Huffers.  Oooh, Evil Plan Hatching....

"Prophet Without Honor" - Max Sawicky brought a gun to the Social Security knife fight, but that turned into such a rout that we have all forgotten.  Well, Freud predicted we would forget, anyway - isn't that blocking, or denial, or something?  Maybe if Max wins a Bloggie my flashbacks and cold sweats will go away.

OK, I am resuming radio silence.  Have a great weekend all.

Take Your Best Shot

The Times outlines the upcoming Dem attack on Alito, leaving us wondering - is this it?

Signaling their intent to put up a tough fight in next week's hearings on the Supreme Court nomination of Judge Samuel A. Alito Jr., Senate Democrats said Thursday that they would call at least two witnesses who could question his personal credibility as well several experts on civil rights and constitutional law.

One witness is John G. S. Flym, a legal scholar. In 2002, Mr. Flym served as counsel to a plaintiff suing the mutual fund company Vanguard in a case that came before Judge Alito on the United States Court of Appeals for the Third Circuit.

Judge Alito had pledged at his confirmation hearings for the appeals court in 1990 that he would recuse himself from cases involving Vanguard, which managed his investments, and when a panel including him ruled unanimously in the company's favor, Mr. Flym complained to the court.

Judge Alito has attributed the lapse to an error in a courthouse computer system that screened for potential conflicts. Ethics guidelines did not require him to recuse himself, and he volunteered to do so at his confirmation hearings to avoid even the appearance of a conflict of interest.

The other witness expected to address Judge Alito's character is Stephen R. Dujack, a journalist who has criticized a conservative alumni group to which Judge Alito belonged. The group, Concerned Alumni of Princeton, opposed the university's admission of women, criticized its affirmative action policies and urged the admission of more alumni children. It went out of business around 1987.

Judge Alito wrote in a 1985 application for a promotion in the Reagan administration that he belonged to the group. Records of the group give no indication that he played an active role in it, and in a response to a Senate judicial questionnaire for the Supreme Court nomination Judge Alito said he did not recall being a member until he was reminded by the disclosure of his 1985 application.

Senator John Cornyn, Republican of Texas and a member of the Judiciary Committee, said the witnesses were a sign that Democrats were grasping for objections. "It just shows how desperate they are to come up with something to criticize him for," he said.

Sen. Cornyn is correct.  Well, perhaps my friends on the left could help me out here - I am not looking for Atrios and Josh Marshall to spin a sow's ear out of a silk purse, but surely the Dems have more than this?

The Vanguard case is a joke.  The "racist, misogynistic homophobic Boy's Club of Princeton" is a joke.  Here is another joke:

Laying the groundwork for other lines of Democratic attack, Mr. Kennedy argued that Judge Alito's opinions in cases that divided his court showed a pattern of rulings in favor of government power and against individual plaintiffs. "Is there any limit on executive authority this nominee will recognize?" he asked.

Senator, is there any limit on your hyperbole?  I call that bold talk for a two-eyed fat man.

Let's go.

WARNING: Maybe the Concerned Alumni of Princeton was not homophobic - I'm just guessing here.  But they might have been!

Friday Cat Blogging

This story about how the entire feline family tree was recreated from mitochondrial DNA and fossil records scores very high on the Cool Scale.

School Vouchers Struck Down In Florida

The Times covers it, and attorney-by-day Baseball Crank has lots more.