JustOneMinute

The Libby Case - Judge's Orders

Jeralyn Merritt of TalkLeft puts up the latest order from Judge Walton in the Libby trial.

This latest order relates to Libby's request for the Presidential Daily Briefs - the judge would like the prosecution to comment on the practicality of providing Libby with summaries of the relevant material for a reduced time frame - the June/July period when Libby was speaking with Miller, Russert, and Cooper, and the periods encompassing Libby's FBI interviews and grand jury testimony.

The biggest loser here - if any member of the chattering class suggested or foresaw this now-painfully obvious compromise, step forward and take a bow; I'm hanging my head in shame

The next biggest loser - well, Fitzgerald argued that the request for the PDBs was "greymail", but the judge is taking it seriously - you make the call!

Of course, one might argue that Libby "lost" since he won't be getting everything he asked for.  Well, parents hear that at Christmas, too - in my humble opinion, no one expected Libby to be given all of the PDBs.  However, a bolder argument would be that Libby lost because the judge's suggestion may eliminate a plausible basis for appeal.

And let's anticipate a future non-win for Special Counsel Fitzgerald - the judge is planning to entertain subpoenas for reporters.  Will Judge Walton uphold a defense subpoena to, for example, Bob Woodward, but refuse to order the prosecution to disclose Woodward's previous testimony? 

How Covert Was Valerie Plame? Don't Ask!

Byron York of NRO reports on Friday's hearing in the Libby pre-trial maneuvering.  He focuses on skirmishing regarding the circumstances of Ms. Plame's classified status and the actual harm done by the "outing" of her CIA affiliation:

CIA leak prosecutor Patrick Fitzgerald argued at a hearing Friday that, as far as the perjury charges against former Cheney chief of staff Lewis Libby are concerned, it does not matter whether or not Valerie Wilson was a covert CIA agent when she was mentioned in the famous Robert Novak column of July 14, 2003. "We're trying a perjury case," Fitzgerald told Judge Reggie Walton. Even if Plame had never worked for the CIA at all, Fitzgerald continued — even if she had been simply mistaken for a CIA agent — the charges against Libby would still stand. In addition, Fitzgerald said, he does not intend to offer "any proof of actual damage" caused by the disclosure of Wilson's identity.

Well, let's not hold Fitzgerald's hyperbole against him - he has a position to defend, and as a matter of law he may be right.

Or he may not be - the defense argued several different points in court, and has offered others in their filings.  From the filings, they suggested that her status and the harm done may both speak to Libby's intent and state of mind.  Their gist - Libby may have been told, or inferred from the manner in which information about Ms. Plame was treated, that her status was no big deal.  If that was in fact the case, then his defense that the Plame information was an easily forgotten low-priority item and that he had no reason to lie looks less like a self-serving rationalization and more like the truth.

In court, the defense offered this as well:

At that point, [Defense attorney] Wells introduced what was the Libby side's most extensive statement to date of its theory of Wilson's CIA status. "I might call Ms. Wilson" to testify, Wells said. "I might call her husband. There are going to be CIA employees as witnesses in this...Was she just classified because some bureaucracy didn't declassify her five years ago when they should have?" Later, Wells asked whether Wilson might have been "classified based on a piece of paper." After Wells's presentation, Fitzgerald responded that Wilson's CIA status did not matter.

Ah ha, the old theory that Ms. Plame was only classified because of bureaucratic inertia!  One can find exhortations to avoid that in Executive Order 13292 regulating classified info.

More comments on the hearing are back here.  The gist - a non-White House senior official leaked the Plame story to Bob Woodward in June, and (quite probably) Bob Novak in July; the source admitted to the Noval leak but only testified to the Woodward leak in November 2005.  However, he lacked criminal intent, or was not part of a sinister conspiracy, or something, because Fitzgerald is apparently not pursuing him.

Libby, on the other hand, mentioned Plame to Judy Miller, discussed the Wilson trip but not Ms. Plame with Tim Russert, and responded with something like, "I heard that, too" when Matt Cooper ran the Plame story by him (per the reporter's versions).

Does this make Libby a criminal conspirator, or a criminal leaker?  Not yet - he hasn't been indicted for that.  However, per Fitzgerald he lied about his conversations with three reporters, and, as Fitzgerald explained in his press conference, he is guilty of something, so away we go.

Just what Libby is guilty of that Mr. Clean of the non-White House is not guilty of eludes me presently, but I assume all will come clear in the fullness of time.

Send In The "B" Team

Hugh Hewitt has a good point and an interesting suggestion on the Dubai debacle, now slated for futher review:

What the new Ports Deal review needs --in fact what CFIUS needs on an ongoing basis-- is a Team B. Asking the same group of officials to check their own work isn't inviting the sort of scrutiny necessary to satisfy the deal's critics from across the spectrum. Adding a Team B to the process will assure that the Cabinet heads and of course the White House will get a thorough review of the transaction, not just a report from CFIUS asserting that CFIUS was correct in its initial assessment.

Man Versus Machine

Democrat Thomas Suozzi, the Nassau County executive, announced his candidacy for Governor of NY in opposition to Eliot Spitzer, and the NY Times swooned:

L.I. Democrat Takes On Spitzer in Governor Race

By PATRICK D. HEALY

GLEN COVE, N.Y., Feb. 25 — Thomas R. Suozzi, the Nassau county executive and a self-styled renegade Democrat, announced Saturday that he was challenging Attorney General Eliot Spitzer for his party's nomination for governor, running as an underdog who will rely to an unusual degree on businesses leaders who have been sued by Mr. Spitzer and New Yorkers who dislike his tactics.

Mr. Suozzi's bid, declared at a boisterous rally in his Long Island hometown here, stands as a direct affront to the New York Democratic Party, which is behind Mr. Spitzer with rare unanimity in the hope of electing the first Democrat as governor since Mario M. Cuomo was defeated in 1994.

"This will be a tough fight: My opponent will have the vote of almost every single Democratic Party boss," Mr. Suozzi told a crowd of more than 1,000 supporters, after taking the stage to the music of U2's "Beautiful Day."

"He'll have the support of almost every single Albany legislator, Albany lobbyist and Albany lawyer," he said of Mr. Spitzer, then quipping to much laughter, "So far, I've been endorsed by my mother and my father — and I'm working on Helene," his wife.

  This is David v. Goliath!  Or, if you prefer, it is Mr. Warmth versus the political machine's hand-picked Annoying Guy:

Suozzi aides — and some Democratic officials — say that Mr. Spitzer has a prickly side and can come across as haughty, and that these traits will come out in the heat of a contest.

In an accompanying profile that reads like a press agent's dream, Mr. Suozzi is "dazzling", "telegenic", "a studious policy maker, polished debater and charming glad-hander".

And does Mr. Suozzi have any ethnic appeal?  Well, "he is of Italian and Irish descent and his wife is Polish-American", but if you want more, "he says "thank you" in Turkish, Korean, Swahili and a couple of dozen other languages".

Well.  Despite the gushing accolades, the Times is guilty of understatement in one respect - in the main article Mr. Suozzi is described as "handsome".  Hold on - I have seen Bill Clinton described as handsome; by that standard, Mr. Suozzi is more at the level of, "Hey, George Clooney, get out of the way so we can get a photo of the good-looking guy!".  Newsday also has pics for the skeptics, as does Yahoo.

So why do we care?  In the short run, as the Times notes, anything that spices up the NY Gubernatorial race will be fun for the local papers.  It will also make it easier for Hillary to stage a stealth Senate run, and the less she says, the better her prospects in 2008.

Beyond that, a popular and successful Democratic Governor of NY will eventually be mooted as a Presidential prospect - folks looking way down the road will be thinking about Spitzer or Suozzi in 2016 (buy the websites now!).  Let's see - Sweet 16, Suozzi 16... well, that can wait.

And in the interests of full disclosure - I didn't like the self-promoting prosecutions that preceded Rudy Giuliani's unsuccessful mayoral run in 1989, and I don't like Eliot Spitzer now.  As a viciously partisan Rep, rooting for Suozzi to do well is probably a mistake - I'll bet that this primary challenge will make Spitzer a more effective candidate, and actually boost the Democrats chances in November.

But as a fan - give me a show.

Rally The Pundits! (Cont.)

On Friday I surveyed the reaction of the NY Times pundits to the proposed Dubai Ports World deal.  Today, Nick Kristof gets into the mix:

If we want to encourage Arab modernization, we should be approving this deal  — not engaging in quasi-racist scaremongering.

Critics of the deal seem to suggest that swarthy men in black turbans are going to be arriving to provide port "security" in Newark. But Dubai Ports World is run mostly by Western executives, under an American chief operating officer. Nothing is going to change on the ground in Newark.

Let's round out the scoring so far: Under "Engage the Arab moderates, approve the deal" we have Nick Kristof, Tom Friedman, and David Brooks.

Paul Krugman remains committed to the notion that Bush is the root of all evil, but is undecided on this deal. 

Maureen Dowd is still looking for some really cute wordplay as she shrieks about sheiks, but seems to be opposed.

In real news, David Sanger describes the latest fig-leaf - while Bush continues to stand firm that the deal is solid, the company is being urged to "voluntarily" request a 45 day review.  Hey, whatever works.  And in an update, David Sanger tells us that the company has gone ahead and requested the review.

We Were Lost But Now Are Found

Per yesterday's court action in the Plame drama, the White House has recently turned over to Special Counsel Fitzgerald 250 emails from the Office of Vice President Dick Cheney.

The reliably exuberant Jason Leopold keeps hope alive:

The White House turned over last week 250 pages of emails from Vice President Dick Cheney’s office. Senior aides had sent the emails in the spring of 2003 related to the leak of covert CIA operative Valerie Plame Wilson, Special Prosecutor Patrick Fitzgerald revealed during a federal court hearing Friday.

    The emails are said to be explosive, and may prove that Cheney played an active role in the effort to discredit Plame Wilson’s husband, former Ambassador Joseph Wilson, a vocal critic of the Bush administration’s prewar Iraq intelligence, sources close to the investigation said.

    Sources close to the probe said the White House “discovered” the emails two weeks ago and turned them over to Fitzgerald last week. The sources added that the emails could prove that Cheney lied to FBI investigators when he was interviewed about the leak in early 2004. Cheney said that he was unaware of any effort to discredit Wilson or unmask his wife’s undercover status to reporters.

The emails "could prove that Cheney lied to FBI investigators"!  Others have speculated that the emails may finally answer the questions about Area 51, place Arlen Specter on the Grassy Knoll, and refute Howard Dean's claim to be King of the Leprechauns.

Raw Story was restrained by comparison.

For myself, my understanding is that the preservation of White House emails is governed by statute; my guess is that the archival activity is handled by techies operating independently of the politicos, and that these emails were misplaced as the result of a systems hiccup (OK, the technical term is "glitch").

But they would say that, wouldn't they!?!

Feel free to leave informed speculation in the comments, or hit the trackback.  And since it's the weekend, wild, over the top speculation is welcome as well.

UPDATE:  Neither the Times nor the WaPo mention this at all; here is the full AP coverage:

The defense was told that the White House had recently located and turned over about 250 pages of e-mails from the vice president's office. Fitzgerald, in a letter last month to the defense, had cautioned Libby's lawyers that some e-mails might be missing because the White House's archiving system had failed.

Let's flash back to Feb 2, as we kicked around the correspondence between Fitzgerald and Libby's legal team.  This was the passage from Fitzgerald that launched a thousand posts:

"We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed," Fitzgerald wrote in a letter to the defense team.

But the prosecutor added: "In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

That was not clear then, and it is still not clear, just as it is far from clear just when it was that these new emails were delivered to Fitzgerald.

The banal, benign explanation - Fitzgerald was simply advising the defense that the archival system had some bugs; he based that on his recent but belated receipt of 250 emails, which has now been announced.

The pulse-pounding alternative - after reading this hint that something was amiss, the archivists produced, as if by magic, 250 heretofore unknown emails.  And who knew, other than Harry Whittington?

The fact the the MSM is ignoring this may be the best reason to look more closely.  Even a few more facts would be helpful.

 

Who Are The Sources?

It was win some, lose some for Libby in court today.  Here is the Wapo:

Vice President Cheney's former top aide is not entitled to know the identity of an anonymous administration official who revealed information about CIA operative Valerie Plame to two journalists, a federal judge ruled in a hearing yesterday.

To defend himself against criminal charges, however, I. Lewis "Scooter" Libby does have the right to copies of all the classified notes he took as Cheney's chief of staff from spring 2003 to spring 2004, U.S. District Judge Reggie B. Walton said. Libby sought the notes to refresh his memory about matters he was handling while discussing Plame with reporters and when questioned by investigators about those conversations.

One official, two journalists?  Whom might we be talking about?  More hints:

But Walton's decision to continue to protect the anonymity of one administration official, whom Libby's attorneys described as a confidential source about Plame for two reporters, one of them apparently Washington Post Assistant Managing Editor Bob Woodward, is a blow to Libby's case. Defense attorneys had said they needed to know the official's identity and the details of his conversations with the two journalists to show that Libby was not lying when he testified that many reporters knew about Plame's identity.

But Walton said the source's identity is not relevant, and there is no reason to sully the source's reputation because the person faces no charges.

The official's identity has been the subject of intense speculation since syndicated columnist Robert D. Novak published Plame's name in July 2003 -- eight days after her husband, Joseph C. Wilson IV, accused the administration of twisting intelligence to justify going to war with Iraq.

Defense attorneys in yesterday's hearing described the official as someone who did not work at the White House and was the source for two reporters. They said that one of those reporters had revealed in November that he learned about Plame from the official in mid-June 2003.

Woodward came forward in November to reveal that he had learned about Plame's CIA status from an administration official in mid-June 2003. Novak said in a speech in December that President Bush knew the identity of his source, and suggested that the official also was Woodward's source. Sources close to the leak investigation have said that Woodward and Novak received similar information from the same official.

Well, well.  Presumably the prosecution would have corrected the record if the defense was misleading the judge when they said the official was "someone who did not work at the White House".  And it seems to be pretty clear that one of the reporters in question is Woodward.

Let's put back in the mix these comments from Bob Woodward when he spoke at Harvard:

Woodward on Novak:

“His source was not in the White House, I don’t believe,” Woodward said of Novak over a private dinner at the Institute of Politics on Dec. 5. He did not indicate what information, if any, he had to corroborate the claim.

Woodward on the Administration conspiracy to out Valerie Plame:

Responding to Bernstein’s claim that the release of Plame’s identity was a “calculated leak” by the Bush administration, Woodward said flatly, “I know a lot about this, and you’re wrong.”

A lot of pixels have been spilled on speculation as to who might have been Woodward's, or Novak's, source.  This old post followed the trail blazed by the sometimes-reliable Mike Isikoff, who suggested that former Deputy Secretary of State Richard Armitage may have been Woodward's source.  And let's remember this about Armitage, from the Isikoff piece:

Armitage was, if anything, a foe of the neocons who did not want to go to war in Iraq. He had no motive to discredit Wilson.

As to discrediting Wilson by leaking the Plame connection, I made the point in that post that the State Department had their own gripes with the CIA on the Iraq-nuclear question, and note that the CIA recruitment of a hubby retired from State may have struck Armitage as an amusing anecdote that discredits the CIA, not Wilson  (My hypothetical cheap shot from Armitage would be something like, "When the CIA needed an answer they came to State anyway - why did anyone even waste time asking them?"). 

As to Armitage being a foe of the neocons, that could describe Bob Novak - I took a stab at their relationship here by reviewing Novak's old columns and concluded this:

Novak praised Armitage regularly, seemed to use him as a source (just from reading between the lines of some of the columns), shared Armitage's skepticism about the war in Iraq - he [Novak] would have to be a much friendlier source than Hadley.

So, is the WaPo telling us that Novak and Woodward shared a non-White House source?  Could that source be Armitage?  There are plenty of straws in the wind.

Now, the judge is currently keeping this from Libby.  What does that suggest?  Some guesses would be: (a) the judge does not think it is relevant, or (b) Libby's team can get what they need by questioning Woodward and Novak.

Here is another stray question - how can it be that Libby's team knows this official is a source for two reporters, but does not know the official's name?  Or do they know the name perfectly well, but just want the grand jury transcripts?

The AP provides another headscratcher:

Libby's lawyers and Fitzgerald disagreed over whether the unidentified government official - who does not work at the White House - was referring to Plame or her husband when he said, "Everyone knows," during a taped interview with investigators.

The defense said the official meant that most reporters knew that Plame worked at the CIA, as Libby testified before a federal grand jury. But Fitzgerald said the reference was to Wilson, who was not identified in initial media reports about the trip to Niger.

So the defense listened to a taped interview but can't identify the person?  How did this tape even come to be played - one imagines the defense had reviewed a transcript and requested a ruling on admissibility.

I'm brainlocking, or missing something.  Not the first time.

Final thought - *IF* the official leaked to Novak and Woodward, it is highly likely that the official neglected to mention the Woodward conversation until November 2005.  So here is someone who leaked to Novak, gave incomplete or misleading information to the prosecutor about his leaks, and yet his anonymity is being protected because, per the WaPo's paraphrase of Judge Walton, "there is no reason to sully the source's reputation because the person faces no charges". 

An official leaked Plame's identity to the press twice and misled the prosecutor about it; now, not only does he not face any charges, but the court is going out of its way to avoid sullying his reputation.  I can't wait to see how that is explained, and I bet Libby's defense will make this an issue.

MORE:  Because he faces no charges *at this time*?  Maybe.  But my own sense is that, with the possible exception of Rove, Fitzgerald is done indicting people, and he won't be indicting someone from State.

UPDATE:  Whoa, talk about differences in story placement - the entire NY Times coverage of the "one official, two reporters, no charges" puzzle is in their last sentence:

Judge Walton also rejected a request by Mr. Libby's lawyers to obtain information about an unnamed official who worked in the administration but not in the White House who discussed Ms. Wilson's identity with reporters.

A quick guess - the WaPo could not duck this because Woodward is one of their guys; the NY Times is engaging in professional courtesy by letting the WaPo handle its own laundry.

But what about Novak, if he is in fact the second reporter?  My theory suggests, look to the Chicago Sun-Times.  If they cover this story, they may tip their hand a bit.  Maybe.

Cherokee People

This is blogging like it oughta be - the Brainster digs into the Abramoff donation numbers ignored by the media, TAP, and everyone else.  He concludes that, contra TAP and Krugman, "up" is not "down".  The question revolves around the contribution habits of various Indian tribes before and after they retained Abramoff:

Now when I first tackled this article I quickly discovered an obvious flaw.  The Prospect article claimed:

At the same time, two of those four tribes -- Saginaw and Chitimacha -- saw their giving to Democrats drop or remain static.

But when you looked at the information on the Saginaw tribe, it said:

1) Tribe: Saginaw Chippewa (Michigan)
Pre-Abramoff contributions to Dems (1991 - 9/2000): $371,250
Post-Abramoff contributions to Dems (9/2000 - 2003): $191,960

Okay, so pre-Abramoff the Saginaw Chippewa gave $371,250 to the Democrats over about 9 years, that's a little over $41,000 per year, while post Abramoff, they gave the Democrats $191,960 over three years, that's $64,000 per year.

So to the American Prospect, going from $41,000 per year to $64,000 per year--a 50% increase in donations from that tribe per year to the Democrats--means that tribe "saw their giving to Democrats drop or remain static."

But it gets better...

Indeed it does.  Folks interested in the Abramoff scandal will be interested in this.

And let's note - anyone who wants to validate or refute the Brainster's number-crunching should hit his trackback.  He provides plenty of links to the underlying data.

Hat tip to Don Luskin.

Rally The Pundits!

Where is the clarity and vision in this Dubai Ports World debacle?  On behalf of a troubled world (or punditry, anyway) I peeked behind the Great Wall to see what the Wise Folk on the other side were thinking.

The results were inconclusive, but interesting:

David Brooks is adamant that we must engage moderate Arabs while punishing evil-doers:

This Dubai port deal has unleashed a kind of collective mania we haven't seen in decades. First seized by the radio hatemonger Michael Savage, it's been embraced by reactionaries of left and right, exploited by Empire State panderers, and enabled by a bipartisan horde of politicians who don't have the guts to stand in front of a xenophobic tsunami.

But let's be clear: the opposition to the acquisition by Dubai Ports World is completely bogus.

The deal would have no significant effect on port security.

Tom Friedman also favors engagement and free trade - no surprise there, but fans of Mr. Friedman will note that his Metaphor Masher is on overtime:

But while I have zero sympathy for the political mess in which the president now finds himself, I will not join this feeding frenzy. On the pure merits of this case, the president is right. The port deal should go ahead. Congress should focus on the N.S.A. wiretapping. Not this.

As a country, we must not go down this road of global ethnic profiling — looking for Arabs under our beds the way we once looked for commies. If we do — if America, the world's beacon of pluralism and tolerance, goes down that road — we will take the rest of the world with us. We will sow the wind and we will reap the whirlwind.

Paul Krugman is agnostic on the deal but reminds us that Bush is the root of all evil.  And did I mention Bush is evil, evil, evil?  And a lying liar?  He is:

Mr. Bush shouldn't really be losing his credibility as a terrorism fighter over the ports deal, which, after careful examination (which hasn't happened yet), may turn out to be O.K. Instead, Mr. Bush should have lost his credibility long ago over his diversion of U.S. resources away from the pursuit of Al Qaeda and into an unnecessary war in Iraq, his bungling of that war, and his adoption of a wrongful imprisonment and torture policy that has blackened America's reputation.

Maureen Dowd, as is her wont, favors hysterical shrieking (Shrieks about sheiks - hey, being MoDo is easy!  But wait, should that be "Quakes about sheiks"?  Maybe she *does* earn her big bucks):

It's enough to make you nostalgic for those gnarly union stevedores in "On the Waterfront," the ones who hung up rats on hooks and took away Marlon Brando's chance to be a contend-ah.

Maybe it's corporate racial profiling, but I don't want foreign companies, particularly ones with links to 9/11, running American ports.

What kind of empire are we if we have to outsource our coastline to a group of sheiks who don't recognize Israel, in a country where money was laundered for the 9/11 attacks? And that let A. Q. Kahn, the Pakistani nuclear scientist, smuggle nuclear components through its port to Libya, North Korea and Iran?

The other prisoners have yet to check in; I expect that John Tierney will be interesting, Bob Herbert will be useless, and Frank Rich will delight those who think Krugman was pulling his punches.

Meanwhile, here in the vast public plains of free info, Mickey Kaus is cogent as always:

If we're afraid of bad guys sneaking something dangerous into the U.S., it sure seems like there are lots of opportunities for mischief if you can infiltrate the firm that does the paperwork and runs the computer system and handles the "personnel issues"!

I hate to say, "Isn't that obvious", but well, isn't it?  Although I'll readily concede that my phrasing was less elegant when I wrote this a few days back:

That said, I have no idea what reality is on this issue, but it seems to me that a port operator ought to have some ability to smuggle contraband and do other evil things.  Wasn't this covered recently on "24"?

MORE: Davids Sanger and Cloud provide the straight news today.

Libby's Filing - Did The WaPo Miss The Point?

Carol Leonnig of the WaPo covers the new Libby filing which argued that the nature of Special Counsel Fitzgerald's appointment was unconstitutional.

A longer post is below, but I wanted to carve this question out for a separate discussion - did the expert quoted by the WaPo even read the filing?

Here is Ms. Leonnig:

Several legal experts said yesterday that the Libby defense team was making a valiant and appropriate effort to defend its client, but said they doubted that the central argument for dismissing the charges would gain traction with the court.

"I think it's a nice try, but I don't give it much chance of success," said Scott Fredericksen, an associate independent counsel during the Reagan administration who helped investigate scandals at the Department of Housing and Urban Development.

Experts said the Libby defense claim is similar to a challenge the Supreme Court rejected by a vote of 7-1 in 1988. In that case, Morrison v. Olson , the Justice Department sought to quash subpoenas of its officials by an independent counsel. They argued that the law that allowed the appointment of independent counsels violated the president's authority under the Constitution and gave such independent investigators inappropriately broad powers.

The regulations written by the Justice Department to allow for the appointment of a special counsel such as Fitzgerald were adopted after the 1992 expiration of a separate law that authorized a judicial panel to appoint independent counsels. The agency decided the regulations were necessary because it was likely there would be times when the federal government's chief law enforcement agency faced conflicts while investigating some matters.

Though the independent counsel worked outside the executive branch, the special counsel regulations were written to work within the executive branch, legal experts said, and the attorney general has authority to deputize someone to prosecute the nation's laws.

"The regulations that created the special counsel are safe from attack," Fredericksen said.

Emphasis added, and let us say this - we have no reason to doubt it.  However, per the filings (summarized and excerpted by Byron York), the appointment of Fitzgerald was not done under the regulations carefully thought through after 1992 or 1999; instead, this looks like an improv act (or at least the defense alleges just that).  From Mr. York:

After Lewinsky, of course, Clinton and his party had a different view on the IC law, so in 1999, they finally agreed with Republicans to let it lapse. But what to do after that? There would clearly be accusations of public wrongdoing in the future, and how should they be handled? Congress held hearings to explore the question, and the administration came up with a structure for what is sometimes called a regulatory independent counsel, which would be subject to greater executive branch supervision than the old independent counsels in future investigations. It was a reasonable solution to a perennially difficult problem.

So what happened in the CIA leak case? The Bush Justice Department could have followed that structure. But it chose not to. Instead, John Ashcroft threw the political hot potato to James Comey, who in turn threw it to his friend Patrick Fitzgerald, giving him virtually absolute power to determine his own course: "I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department." Was that extraordinary, and new? Ask David Barrett if he would have liked to have had that authority. But he did not, because the independent counsel law placed limits on investigations that Fitzgerald does not face.

In sum, in the Clinton investigations, Republicans didn't like the independent counsel law, but it was the law. In the Fitzgerald case, it's just improvisation.

Page 9 of the .pdf contains a similar assertion, but my cut and paste is not working just now.

Look, Ms. Leonnig's expert may be right but he ought to at least address this very obvious contention from the defense - were the planned, vetted regs designed to establish a Special Counsel followed, or not?

MORE:  The GAO addressed some of this in this 2004 discussion of Fitzgerald's finances.  Arguably in Fitzgerald's favor is this caveat about the DoJ rules meant to empower independent counsels:

Acting Attorney General Comey appointed Special Counsel Fitzgerald under 28 U.S.C.  509, 510 and 515. [16] The Department has relied upon such authority in the past to appoint regulatory independent counsel from outside the government..

The remaining issue is whether Part 600 can be waived by the Attorney General or acting Attorney General. We examined Part 600 and found it was issued in 1999 to replace the procedures of the expired Independent Counsel Reauthorization Act of 1994. In our view, Part 600 is not a substantive (legal) limitation on the authority of the Acting Attorney General to delegate departmental functions to Special Counsel Fitzgerald. First, 28 C.F.R. 600.10 states that the regulations are "not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative." Further, in the supplemental information accompanying the issuance of Part 600, the Department explained that the effective date of the rule did not have to be delayed 30 days after publication because it was not a substantive rule, citing 5 U.S.C. 553(d), 552(a)(1)(D). 64 Fed. Reg. 37038, at 37041 (July 9, 1999).

If I am following this, it means that the rules Comey elected to ignore were non-binding DoJ regs - "suggestions", as it were, not law.

That may help Fitzgerald, but the defense would just go back to first principles - presumably, those "suggestions" were meant to resolve and avoid certain Constitutional problems, yes?  So even if Comey was not obliged to follow them, he may have strayed from the path with his own improvisation.

Well - Constitutional scholars should feast today.

MORE:  The American Thinker excerpts a good NY Sun editorial explaining this.

BOLD AND BELATED:  My Bold Prediction - dismissing this high profile case is above Judge Walton's pay grade, even if the weight of the argument favors Libby (and it may not).  On the other hand, the judge is looking at almost a year of pre-trial wrangling, including what will probably be brutal subpoena battles with various reporters (Andrea Mitchell and the NBC Washington Bureau, for example) and tussles over classified info.

So - *if* it can be engineered, the judge will reject this motion to dismiss in a way that expedites the appeal, so that the Appeal Court and the Supreme Court have an opportunity to resolve this before the scheduled trial start in Jan 2007.

Special Counsel Fitzgerald - Too Independent?

Byron York summarizes the latest legal filing from the Libby defense team - a motion to dismiss the indictment against Libby on the grounds that the authorizations constituting Special Counsel Fitzgerald's office were unconstitutionally broad.

Wow.

My questions:

(1)  What is the remedy?  Can the AG simply reconstitute Fitzgerald's office appropriately, so that Fitzgerald can re-indict Libby relatively promptly?  Or is all the evidence gathered by Fitzgerald, including Libby's grand jury testimony, now tainted and inadmissible?

If the latter, I don't think Libby will be re-testifying to a new grand jury.  Might Fitzgerald re-indict him on the basis of false statement to the FBI?

(2)  Does the defense get a second bite of the apple, or is this their only chance to file for dismissal?  With all the talk about Ms. Plame's classified status, I have been expecting a motion to dismiss on the basis of immateriality - the argument would be that Fitzgerald cannot indict for perjury absent an underlying criminal activity.

(3)  Who gets the blame if this motion is upheld - does the accusing finger point at Comey, Fitzgerald, or both?

UPDATE:  Andy McCarthy responds; Byron York comes back.

I believe I can tackle one objection raised by Mr. McCarthy, who wrote this:

Finally, as a constitutional matter, Pat’s authority came not from Jim Comey’s letter but from the President’s executive power under Article II. There was never a moment when President Bush could not have fired Pat – indeed, the President could fire him today (just as he could pardon Scooter today if he decided to). That he doesn't do so is understandable politics, but it doesn't change the legal reality.

Here is my answer to that - the filing makes clear that "principals", such as Cabinet Secretaries, must be confirmed by the Senate.

Bush can surely fire his Cabinet Secretaries.  Therefore, even if we presume that Bush can fire Fitzgerald,  that does not answer the question of whether Comey inadvertently elevated Fitzgerald to the functional equivalent of Cabinet rank, thereby creating a situation where Fitzgerald's status requires Senate approval.

MORE:  AP coverage.

UPDATE:  Carol Leonnig of the WaPo joins in with a dose of skepticism that I don't understand:

Several legal experts said yesterday that the Libby defense team was making a valiant and appropriate effort to defend its client, but said they doubted that the central argument for dismissing the charges would gain traction with the court.

"I think it's a nice try, but I don't give it much chance of success," said Scott Fredericksen, an associate independent counsel during the Reagan administration who helped investigate scandals at the Department of Housing and Urban Development.

Experts said the Libby defense claim is similar to a challenge the Supreme Court rejected by a vote of 7-1 in 1988. In that case, Morrison v. Olson , the Justice Department sought to quash subpoenas of its officials by an independent counsel. They argued that the law that allowed the appointment of independent counsels violated the president's authority under the Constitution and gave such independent investigators inappropriately broad powers.

The regulations written by the Justice Department to allow for the appointment of a special counsel such as Fitzgerald were adopted after the 1992 expiration of a separate law that authorized a judicial panel to appoint independent counsels. The agency decided the regulations were necessary because it was likely there would be times when the federal government's chief law enforcement agency faced conflicts while investigating some matters.

Though the independent counsel worked outside the executive branch, the special counsel regulations were written to work within the executive branch, legal experts said, and the attorney general has authority to deputize someone to prosecute the nation's laws.

"The regulations that created the special counsel are safe from attack," Fredericksen said.

Emphasis added, and we will say, I'm sure they are.  But, per both York and the filing, the defense is arguing that Comey, as acting AG, *did not follow* the standing regulations when he appointed Fitzgerald.  York has more on that here and here.

So are "Comey's Rules" also safe from attack, and why does Frederickson think so?

Here is an excerpt from York 1:

After the independent counsel law expired, the Clinton Justice Department came up with a set of rules governing the appointment and practices of special prosecutors for future investigations. Those rules included supervision and control of the prosecutor. But the Bush administration, for reasons that have never been made public, decided not to follow those rules and instead gave Fitzgerald unlimited powers -- a decision that some in the administration no doubt regret and one which raises real constitutional questions. Now we'll see what the judge in the CIA leak case thinks about it.

BARREL-FISHING:  I have no doubt that Andy McCarthy is a great American, but he needs to raise his game - here is another objection he raises:

I’m also constrained to observe that during the Lewinsky controversy, we looked with disdain on these hyper-technical legal maneuvers (like Clinton’s risible attempts to create new evidentiary privileges) whose unabashed purpose was to derail the prosecution. Back then, we used to say the important public interest was to resolve whether public officials had lied and obstructed justice. Now, such maneuvers somehow seem worthy, and we are apt to find the prosecutor, rather than the defendant, to be stonewalling.

Let's see - Clinton remained in office and used the powers of the Executive Branch to invoke executive privilege and to invent new privileges, such as the Secret Service secret protective privilege.  That presented an odd picture of "cooperation" with the investigation.

Libby has resigned and is currently employing every legal resource available to a *private citizen*.  Libby may or may not have obstructed the investigation while in public office, but, contra Clinton, he is clearly not inventing hyper-technical legal obstacles while in public office.

Surely there is a huge difference.

 

Seven Wonders

Go here to vote for the new Seven Wonders of the World.

And feel free to help me complete my ballot - I am going with La Tour Eiffel, the Statue of Liberty, the Great Wall of China, the Taj Mahal, and Stonehenge, but that leaves me two short.

Voting closes Jan 1, 2007, so Act Now!

On The Waterfront, II

The NY Times has four stories and a guest op-ed on the  Dubai Ports Word debacle, but is the deal a national security problem?  Who knows?

Marlon Brando fans will like this detail from Patrick McGeehan's "Work at Terminals Untouched by Firestorm of Security Debate":

The vast majority of workers who unload the big ships and send the containers on their way will be the same, whoever runs the place. At the Port of New York and New Jersey, as at other big American ports, the heavy lifting is done by members of the International Longshoremen's Association who are not employees of P & O Ports or its competitors.

...All but one of the terminal operators are tenants of the Port Authority of New York and New Jersey and are responsible for maintaining security on the property they rent. They are required by federal law to file their plans for controlling access to their facilities with the United States Coast Guard, which has jurisdiction over port facilities.

The ports in the New York area have an additional layer of screening that is unique, port officials said. As a vestige of the investigations into the corruption that pervaded the waterfront in the early 1950's, the Waterfront Commission of New York Harbor, a bistate police agency, conducts background checks on every worker who comes into contact with cargo, said Thomas De Maria, executive director of the commission.

"The major concern is will this company bring in its own workers," Mr. De Maria said. "That's not a concern in New York and New Jersey, because of the waterfront commission. We are the gatekeepers."

Elisabeth Bumiller and Carl Hulse found some reassuring experts:

Panel Saw No Security Issue in Port Contract, Officials Say     

WASHINGTON, Feb. 22 — The Bush administration decided last month that a deal to hand over operations at major American ports to a government-owned company in Dubai did not involve national security and so did not require a more lengthy review, administration officials said Wednesday.

The decision was made by an interagency committee led by Deputy Treasury Secretary Robert M. Kimmitt. The group included officials from 12 departments and agencies, including the Departments of Defense, Justice, State and Homeland Security, as well as the National Security Council and the National Economic Council.

In a telephone interview on Wednesday, Mr. Kimmitt said that the company, Dubai Ports World, had been thoroughly investigated by the administration, including by intelligence agencies, and that on Jan. 17 the panel members unanimously approved the transfer.

"None of them objected to the deal proceeding on national security grounds," he said.

They also cite a GAO study (56 page .pdf):

In September, the Government Accountability Office, an investigative arm of Congress, said the Treasury Department, as head of the interagency committee that reviews such deals, had used an overly narrow definition of national security threats because it wanted to encourage foreign investment.

David Sanger wrote about a "Big Problem, Dubai Deal or Not".  His first expert quote is reassuring:

Among the many problems at American ports, said Stephen E. Flynn, a retired Coast Guard commander who is an expert on port security at the Council on Foreign Relations, "who owns the management contract ranks near the very bottom."

His second is not:

Some independent experts, like Dr. Irwin Redlener of the National Center for Disaster Preparedness at Columbia University, warn of the risk that "a lot of critical information about the movement of cargo is now accessible to new owners."

His third expert is just scary:

"I'm not worried about who is running the New York port," a senior inspector for the International Atomic Energy Agency said, insisting he could not be named because the agency's work is considered confidential. "I'm worried about what arrives at the New York port."

David Cloud provides background on the US - Emirates relationship.

Hassan M. Fattah tells us that "Dubai Sees Bias Behind Storm".

And, pulling out all stops, the Times even provides a guest op-ed from Superman (in his day job):

Clark Kent Ervin, the inspector general of the Homeland Security Department from 2003 to 2004, is the author of the forthcoming "Open Target: Where America is Vulnerable to Attack."

 

OK, we will accept his credentials.  An excerpt:

It is true that at the ports run by the Dubai company, Customs officers would continue to do any inspection of cargo containers and the Coast Guard would remain "in charge" of port security. But, again, very few cargo inspections are conducted. And the Coast Guard merely sets standards that ports are to follow and reviews their security plans. Meeting those standards each day is the job of the port operators: they are responsible for hiring security officers, guarding the cargo and overseeing its unloading.

Leaving us where?  As an aside, let me praise the Times coverage - this is clearly a New York story, so extensive coverage was inevitable.  However, the reporters do seem to be as baffled as the rest of (excluding the Times editors, of course.)

That said, let's reprise the Times editorial and see what it is they are calling for:

Senator Charles Schumer, a New York Democrat, and Representative Peter King, a New York Republican, are introducing a bill that would put the decision on hold and require closer examination of the proposal. The bill would ultimately give Congress the final say.

The Schumer-King bill takes the right approach, and members of Congress from both parties should rally around it. Rather than using his first veto on such a wrongheaded cause, President Bush should make the bill unnecessary by acting on his own to undo the ports deal.

Who can argue with more study?  Contra the Times, my theory is that Congress will prefer not to have the final say - that would make them accountable for the result, which is never a Congressional objective.

MORE:  Mark Coffey is attempting to capture the spirit of my theorem.

The Rise Of The Cult, Day Five - Facts Are For Cowards

Glenn Greenwald responds to my taunting and I didn't even have to threaten to wave my private parts at his auntie.  Of course, my real beef is with Peter Daou of Salon, who is, in my opinion, wasting his reader's time and his own valuable e-space by touting Greenwald's bilge as a "seminal" work.  As I have noted from the outset, it is a free country and Mr. Greenwald is surely free to engage in whatever name-calling he thinks necessary in order to boost his traffic.

Greenwald's response will not surprise anyone who has endured countless similar internet exercises over the years, or has access to a balky high-schooler - it is the standard mix of cheap shots and attempts to shift the goal post.  However, we did unearth a comic gem which we will share shortly.

To recap - Greenwald put up a generic Bush-basher in which he explained his "theory" that Bush supporters are "Authoritarian Cultists" with two distinguishing characteristics: any conservatives who criticize Bush are re-labelled as "liberals" and cast out.  This being a cult of personality rather than ideas, no deviation from the Bush Party line is endured - rather than being "true" conservatives, these Cultists simply parrot Bush's latest pronouncements.  Let me excerpt him:

And in that regard, people like Michelle Malkin, John Hinderaker, Jonah Goldberg and Hugh Hewitt are not conservatives. They are authoritarian cultists. Their allegiance is not to any principles of government but to strong authority through a single leader...

To which I said, roughly, yeah, yeah.  Following James Taranto (or Jonah Goldberg), I wondered whether Greenwald actually had any evidence to back up the notion that the folks he named - Malkin, Hewitt, Hinderaker, Goldberg, and Goldstein (mentioned elesewhere) - actually engage in relabeling.  I also wondered how he explained the devation of these Cultists from Bush orthodoxy on, for example, Harriet Miers or immigration.  To round out the challenge and test the predictive power of this "seminal" advance in social/polticial science, I suggested that Greenwald examine the specific case of Heather Wilson (R, NM), who broke with Bush on the NSA program - have any of the Cult members he mentioned re-labeled her?

Greenwald responded with this bit of comic luminescence:

To the extent that an argument can be discerned, Tom is claiming (as did Taranto) that the examples I cited of conservatives being labeled "liberal" as a result of anti-Bush blasphemy -- I cited John McCain, Chuck Hagel, George Voinovich, John Sununu, Bob Barr, and Andrew Sullivan -- are, for one reason or another, not really compelling examples of that trend. Tom, as well as Taranto, exhibit a good amount of intellectual cowardice by purposely refusing to say whether they actually dispute the existence of this phenomenon or whether they simply think that I provided insufficiently clear examples of it. But they claim that the examples I provided were poor and that the links I included for these examples did not support the overall claim.

Emphasis added, and don't you have to love a guy who thinks it is intellectual cowardice to hold off on forming an opinion until facts are presented?  I am requesting commenters to help me incorporate this dicta into a new banner for the left; the current suggestions are:

(a) The reality-based community, where facts are for cowards;

and

(b) This is the reality-based community - we don't need no stinkin' facts.

I don't know yet how hard Greenwald will push his newest theme, but it seems kind of catchy.

That said, where are we?  Greenwald asserted the existence of a cult including Hinderaker, Hewitt, Malkin, Goldberg, and Goldstein; I asked for "real evidence of Cult leaders actually re-labeling Bush critics as 'liberal' "; and Greenwald offered, hmm, Rush Limbaugh, consultant Frederick Mann, Newsbusters (with Brent Baker re-labeling Arlen Specter), blogger "Rousseau", and some NRO readers writing to J Pod.

The case is clear!  If Greenwald had been arguing that in this broad and beautiful land there are a few stray examples of political point-scorers castigating their opponents by re-branding them as "liberal", I can't imagine he would have started an argument; certainly I would not have disputed him - geez, I'll bet that somewhere out on the internet, someone has declared Howard Dean to be King of the Leprechauns, but I am not going to announce the discovery of a broad new movement committed to that notion. 

But chalk that up to my cowardice!  Greenwald said this:

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based. And the more one criticizes him, by definition, the more "liberal" one is."

Either not many people have criticized Bush, this is an awfully quiet cult, it's a vocal but very tiny cult, or Greenwald is a bit short of evidence.  Tough call!  And where (dare I ask?) are they examples of Hinderaker, Hewitt at al engaging in re-labeling?  Where is the evidence that Heather Wilson has been re-labeled?  Isn't a theory meant to have a bit of predictive power?  Where is Greenwald's rationalization of the fact that the Cult leaders he mentioned have broken with Bush in the past, and are doing so right now on the port deal?  Why am I continuing with these rhetorical questions, and will I ever stop?

I will.  Let me attempt to bring the argument up to date by presenting The Annotated Greenwald.  My suggested revisions are in brackets:

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based.  [However, even though one becomes a "liberal" the moment one criticizes Bush, the Authoritarian Cultists may not publicly re-label the object of their opprobrium for days, weeks, years, or ever.  But it's what they're thinking!]

And on the Blind Adherence concept, let's try this for greater clarity:

Is there anything more antithetical to that ethos than the rabid, power-hungry appetites of Bush followers? There is not an iota of distrust of the Federal Government among them. Quite the contrary. Whereas distrust of the government was quite recently a hallmark of conservatism, expressing distrust of George Bush and the expansive governmental powers he is pursuing subjects one to accusations of being a leftist, subversive loon.  [Except, of course, when they forget to label the opponent a leftists loon, and when the Authoritarian Cultists themselves break with Bush, as with Harriet Miers, immigration, spending, the Dubai deal... .]

One more:

And in that regard, people like Michelle Malkin, John Hinderaker, Jonah Goldberg and Hugh Hewitt are not conservatives. They are authoritarian cultists. Their allegiance is not to any principles of government but to strong authority through a single leader.  [We all know this is true, so no one's intellectual courage will be insulted by the presentation of supporting evidence.  Remember, this is the reality-based community!]

Well, it was surely bold of Greenwald to offer up his paucity of evidence in order to demonstrate the faith-based nature of his case.  I am not at all worried that his latest effort will insult the courage of his target audience.

The Plame Case - Libby Replies On Disclosure

[WaPo coverage here - Carol Leonning emphasizes the "I am a busy but innocent man" angle, rather than the looming media meltdown.  Well, it's a reasonable choice and will only heighten the public's surprise later.

And Byron York has a good summary of the back and forth about Ms. Plame's status.]

The defense team of I. Lewis Libby has posted their response to Fitzgerald as the discovery ping-pong ball flies back and forth.  Here is their five page affidavit exhorting the court to provide the Presidential Daily Briefs for Libby's defense and rejecting the "greymail" allegation.  The gist - Libby's notes do not include material from the highly-sensitive PDBs, but he is sure that the stuff in there was a lot more important than anything he heard about Wilson and his wife; now, unfortunately, as Libby prepares his faulty memory defense, he can't remember what it is he forgot.

Oh, you see why these lawyers command the big bucks.  That said, if Libby can show in court that during the week he was supposed to be focusing on outing Valerie he was actually helping to save the kidnapped daughter of the Saudi Ambassador (while keeping it out of the press!), well - my jaw will drop, but I bet the jury will buy it.

And here is their second filing, a 32 page effort explaining the importance of some of the other discovery items.

One point they emphasize - the defense really does want to learn what other reporters told Fitzgerald, whether it involved Libby or not.  Frankly, I don't see how a judge can dispute its relevance, but let's let the lawyers tell it:

In a case that essentially pits Mr. Libby’s memory of certain conversations against the recollections of three reporters, in which knowledge by the reporters as well as by Mr. Libby is at issue, it is astounding for the government to assert that Mr. Libby should not have the opportunity to investigate the state of mind of any other witness.

Second, the information Mr. Libby seeks is necessary to prepare the defense not only based upon state of mind, but also based on the truth of Mr. Libby’s testimony to the grand jury that he and other government officials were hearing from reporters that Ms. Wilson worked at the CIA. In that regard, the defense is not bound by a reporter’s published statement, much less by the Special Counsel’s conclusion, about what a particular reporter knew or heard.  Further, in a case where one journalist publicly stated that Ms. Wilson’s employment by the CIA was “well known” to journalists covering national intelligence matters, Mr. Libby is obviously entitled to all the information in the government’s possession that would assist him in investigating and establishing the truth of that statement.

Mr. Libby is also entitled to investigate whether the reporters who will testify at trial are mistaken, biased, or otherwise not credible. The government concedes that “[t]he fact that some reporters may have known of Ms. Wilson’s employment could only be relevant if the that some reporters may have known of Ms. Wilson’s employment could only be relevant if the defendant, or the reporters with whom the defendant spoke, became aware of it.” (Gov’t Br. at 12 (emphasis added).) This is precisely one of the issues that the defense is seeking to investigate. For example, the indictment alleges that Mr. Libby falsely stated that Tim Russert told him that “all the reporters” knew about Ms. Wilson’s employment at the CIA. Accordingly,
the defense is entitled to investigate which reporters did know about Ms. Wilson’s employment status, and whether Mr. Russert could have been aware of such information before he spoke to Mr. Libby. The requested documents are necessary to investigate fully the answers to these questions and to prepare for the cross-examination of reporters like Mr. Russert and Mr. Cooper.

Hey, a quick sidebar!  Is that "well known" quote a reference to Andrea Mitchell?  Her actual words were "widely known".

Or is it possible that the defense is referring to Nick Kristof?  Back in October 2003 he offered his own hint that he knew more about Ms. Plame than he was telling:

Third, Mrs. Wilson's intelligence connections became known a bit in Washington as she rose in the CIA and moved to State Department cover, but her job remained a closely held secret.

"Known a bit" is not "widely known", either.  We'll see if subsequent filings clear this up, but I am betting Mitchell.

The rest of Kristof's hinting was in his lead paragraph:

I know Mrs. Wilson, but I knew nothing about her CIA career and hadn't realized she's "a hell of a shot with an AK-47,'' as a classmates at the CIA training "farm,'' Jim Marcinkowski, recalls. I'll be more careful around her, for she also turns out to be skilled in throwing hand grenades and to have lived abroad and run covert operations in some of the world's messier spots. (Mrs. Wilson was not a source for this column or any other that I've written about the intelligence community.)

Not familiar with her career?  I know Nick Kristof is currently a Times columnist, but I am not familiar with his full career, either.  Clearly, Mr. Kristof is not exactly saying "I had no idea she was presently at the CIA".

And what about this odd disclaimer - "Mrs. Wilson was not a source for this column or any other that I've written about the intelligence community"?  Gee, was she a source for a column about, I'm guessing, Iran's nuclear aspirations?  North Korea's terrorist capabilities?  Why the odd, caveatted denial?

These journalists write "denials" they would never tolerate from a public official, and they wonder why we are suspicious.  But I'll say this - if Nick Kristof takes the stand and admits that Ms. Plame outed herself to him in May of 2003 (or earlier!), the case against Libby may collapse in gales of laughter.  [Put Novak in the mix for "well known" - see NOVAK]

OK, back to the filing - as previously reported, the defense really is thinking about  targetting a number of journalists and Bringing Down the House:

Furthermore, it is apparent that during its investigation the Office of Special Counsel chose not to seek information from many reporters and news organizations that is essential to a full investigation of the charges made against Mr. Libby. Thus, it will be necessary for the defense to issue Rule 17(c) subpoenas to certain journalists and their employers in any event, and litigation concerning reporters’ privilege may be unavoidable in this case.

This case may be stalled for a long time.

NOVAK:  Put Robert Novak in the "well known" mix with this:

How big a secret was it? It was well known around Washington that Wilson's wife worked for the CIA. Republican activist Clifford May wrote Monday, in National Review Online, that he had been told of her identity by a non-government source before my column appeared and that it was common knowledge.

OK, "well known" matches nicely, but... the defense filing also cites "journalists covering national intelligence matters".  Here is Ms. Mitchell:

It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger.

Ms. Mitchell would also tie in to the defense's interest in Mr. Russert, so she is my bet here.

On The Waterfront

Bush issues a veto threat on the UAE port deal?  I am in broad agreement with the opening of the NY Times editorial:

If President Bush follows through on his threat, he'll be making a strange choice for his first veto after more than five years in office. After giving a pass to a parade of misbegotten Congressional initiatives and irresponsible budget packages, he'd be choosing to take a stand over the right to hand control of operations at major American ports to a company based in Dubai, in the United Arab Emirates, and controlled by that government.

And Congress, which is making a bipartisan show of beating its collective chest, is being rather tardy in taking a stand, given the way it has looked on indifferently as the administration has ignored Congress's own rights of oversight and its constituents' right not to be targets of extralegal spying.

My theory of Craven Congressional Buck-passing can easily be extended to include the port debacle.  You may recall the theory - since we may, Heaven forbid, be attacked again, Congress is determined that no fingers can be pointed back at them in the aftermath.

Consequently, after a bit of voguing, Congress passed the Partiot Act; after a bit more voguing, they will endorse the NSA warrantless eavesdropping.  (Caveat - they *may* engineer a mechanism that puts the onus on the FISA Court to strangle this program; as long as they can avoid leaving their own fingerprints, it works for them).

So, with the ports?  This issue is easily demagogued, so don't look for Congressional leadership here - their goal is to give the appearance of being tough on national security; reality is for other people.  (That said, I have no idea what reality is on this issue, but it seems to me that a port operator ought to have some ability to smuggle contraband and do other evil things.  Wasn't this covered recently on "24"?)

This NY Times story points the way to a fig-leaf:

The administration's review of the deal was conducted by the Committee on Foreign Investment in the United States, a body that was created in 1975 to review foreign investments in the country that could affect national security. Under that review, officials from the Defense, State, Commerce and Transportation Departments, along with the National Security Council and other agencies, were charged with raising questions and passing judgment. They found no problems to warrant the next stage of review, a 45-day investigation with results reported to the president for a final decision.

However, a 1993 amendment to the law stipulates that such an investigation is mandatory when the acquiring company is controlled by or acting on behalf of a foreign government. Administration officials said they conducted additional inquires because of the ties to the United Arab Emirates, but they could not say why a 45-day investigation did not occur.

There you go - the law may have required a 45-day review, so let's have it.

MORE:  OK, I'm agreeing with a NY Times editorial, but Jimmy Carter is backing President Bush:

''The overall threat to the United States and security, I don't think it exists,'' Carter said on CNN's The Situation Room. ``I'm sure the president's done a good job with his subordinates to make sure this is not a threat.''

OK, if Jimmy doesn't see a threat, I'm *really* nervous (and it's not just me).  Here is the transcript, and a longer soundbite (although this issue was an afterthought in the interview):

BLITZER: Are you concerned at one of our top stories today about this Dubai-based company taking control of security at six major ports here in the United States?

CARTER: Well, I've been to Dubai, and I've seen the remarkable port facilities they have there, perhaps the best in the world. I'm not knocking the ones in the United States, of course. My presumption is, and my belief is, that the president and his secretary of state and the Defense Department and others have adequately cleared the Dubai government organization to manage these ports. I don't think there's any particular threat to our security.

Obviously, the Homeland Security would have to be involved directly with, and in a partnership with, the Dubai people as they clear folks to work in their ports, particularly in sensitive areas. So the overall threat to the United States and security, I don't think it exists. I'm sure the president's done a good job with his subordinates to make sure this is not a threat. 

SIDEBET:  Do you think Jimmy stands by this, or will he backpedal now that the direction of the wind is more clear?  This sentence - "My presumption is, and my belief is, that the president and his secretary of state and the Defense Department and others have adequately cleared the Dubai government organization to manage these ports" - certainly leaves some wiggle room.

LOTS MORE: Lots at the InstaPundit (Yes, I know that you know, but I want this link in my archives.)

RIPPING AND SNORTING:  The WSJ editors drop the gloves (i.e., today falls between Monday and Friday):

As for the Democrats, we suppose this is a two-fer: They have a rare opportunity to get to the right of the GOP on national security, and they can play to their union, anti-foreign investment base as well. At a news conference in front of New York harbor, Senator Chuck Schumer said allowing the Arab company to manage ports "is a homeland security accident waiting to happen." Hillary Clinton is also along for this political ride.

So the same Democrats who lecture that the war on terror is really a battle for "hearts and minds" now apparently favor bald discrimination against even friendly Arabs investing in the U.S.? Guantanamo must be closed because it's terrible PR, wiretapping al Qaeda in the U.S. is illegal, and the U.S. needs to withdraw from Iraq, but these Democratic superhawks simply will not allow Arabs to be put in charge of American longshoremen. That's all sure to play well on al Jazeera.

OVERSIMPLIFIED:  One of my favorite sons of the Auld Sod reminds us to look for a bit of nuance and warns against a rush to judgement.  From Jack Kelly:

But, warns Spook 86, it's not that simple:

Cancelling the port deal could mean the end of U.S. basing rights in the UAE, strained relations with other regional partners, and the potential loss of a key defense contract, all viewed as critical in fighting the War on Terror. Collectively, those factors probably explain why the deal hasn't already been nixed, and why the Bush Administration may put up a fight--even with political allies.

It's a good point-counterpoint - read it all.

STILL MORE:  YARGB has a modest hope that someone will actually report on just what it is that a "port operator" does, and what the security issues might be.  He does like this CSM piece (but I think he needs to fix the link).

 

Rise Of The Cult, Day Four - The Port Deal

A day may come when I get bored with mocking Peter Daou's comical description of Glenn Greenwald's brain-fart as a "seminal" work.  But it is not this day.  This day, we mock!

Let's quickly remind ourselves of this seminal theory:

It used to be the case that in order to be considered a "liberal" or someone "of the Left," one had to actually ascribe to liberal views on the important policy issues of the day – social spending, abortion, the death penalty, affirmative action, immigration, "judicial activism," hate speech laws, gay rights, utopian foreign policies, etc. etc. These days, to be a "liberal," such views are no longer necessary.

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based. And the more one criticizes him, by definition, the more "liberal" one is.

...The blind faith placed in the Federal Government, and particularly in our Commander-in-Chief, by the contemporary "conservative" is the very opposite of all that which conservatism has stood for for the last four decades....

And in that regard, people like Michelle Malkin, John Hinderaker, Jonah Goldberg and Hugh Hewitt are not conservatives. They are authoritarian cultists. Their allegiance is not to any principles of government but to strong authority through a single leader.

...And as excessive as the Bush Administration’s measures have been thus far...I am quite certain that people like John Hinderaker, Jonah Goldberg and Jeff Goldstein, to name just a few, are prepared to support far, far more extreme measures than the ones which have been revealed thus far.

Now, since the Dubai port deal is in the news, let's see how the Authoritarian Cultists are handling it.  Per the Greenwald/Daou Theorem, Hewitt, Malkin, Hinderaker, Goldstein and Goldberg should be re-labeling folks like crazy.  Let's see:

From Hugh Hewitt:

The Bush Administration needs to back away from this deal as quickly as possible.

Should we score that as an example of Hewitt re-labelling Bush as a liberal?  Yeah, let's!

From Michelle Malkin:

HOW THE PORT SELLOUT WAS FINANCED

Dubai media outlets are calling critics and skeptics of the port sellout "Islamophobes."

If demanding that our government put American security interests above foreign business interests makes me an "Islamophobe," and if wanting to know the full details of the who, what, when, where, and why of this UAE government deal, secretly approved by the Treasury Dept.-led Committee on Foreign Investments in the US, makes me an "Islamophobe," I plead guilty.

Well, that is clear - I am sure Mr. Daou will agree that in this example, Ms. Malkin re-labeled the entire Middle East as "liberal".

John Hinderaker:  Nothing on the Dubai ports yet, although Scott Johnson is hammering their crusade on the blackout in Minnesota of some contra-Sheehan soldier's stories.

Easy to score - Mr. Hinderaker is busy working on his post re-labeling Hewitt and Malkin as "liberals".

Jeff Goldstein:  Mr. Goldstein took a strong stand last night in an attempt to rebel against the Authoritarian Cultists; fortunately, his implanted biofeedback control chip has allowed the Cult to disable him.

So there you go, Mr. Daou - evidence everywhere that this "seminal" theory is alive, well, and successfully predicting the behavior of prominent righty bloggers. 

One might think that Messrs. Greenwald and Daou would care to share this new validation with their readership.

We're talking Real Breakthrough Stuff here.

UPDATE:  Jonah Goldberg joins in:

I've been very rough on Bush of late and I agree entirely with the now-obvious consensus that the UAE deal is bad politics. I'm even somewhat convinced that it's bad policy. But I can't help but get the whiff of hysteria in all of this. Hillary Clinton's getting to the right of Bush, talk radio's going through the roof, Republican presidential wannabes are lining up to distance themselves from the president...

...All this in response to a largely paper transaction (longshoremen will keep their jobs, the coast guard will still handle security, etc etc) between a British-owned and Arab-owned firm. In fact, it doesn't seem overwhelmingly obvious to me that Jihadis would have a much harder time infiltrating a British firm than an Arab one. But mostly, I'm skeptical that this is the security disaster everyone claims because domestic national security is one of the few areas where I really do trust this White House to err on the side of safety. For five years, liberals have been saying that Bush is an obsessed madman when it comes to the terror threat. And for five years conservatives have been saying, trust him. Suddenly, all of that goes out the window. Again, I think Bush is probably wrong on the merits. But, I somehow doubt he's as widly wrong as the mob claims.

I agree with JPod entirely that there is a second term dynamic to all of this. I just think that goes for a lot of conservatives as well.

Tough to score - I think Goldberg is labeling J-Pod a "liberal" here.  Judges?

OUT OF THE WOODWORK:  Glenn Greenwald responds.  I will have a more complete reply after I stop laughing - his explanation that facts are for intellectual cowards is priceless.

Lest you doubt:

Tom, as well as Taranto, exhibit a good amount of intellectual cowardice by purposely refusing to say whether they actually dispute the existence of this phenomenon or whether they simply think that I provided insufficiently clear examples of it.

Conclusions first, evidence to follow!  No cowards amongst Greenwald's acolytes!

Kelo In The Times

The NY Times covers the aftermath of the controversial Kelo decision, and poses a typical and amusing puzzle for its readership:

States Curbing Right to Seize Private Homes

By JOHN M. BRODER

In a rare display of unanimity that cuts across partisan and geographic lines, lawmakers in virtually every statehouse across the country are advancing bills and constitutional amendments to limit use of the government's power of eminent domain to seize private property for economic development purposes.

The measures are in direct response to the United States Supreme Court's 5-to-4 decision last June in a landmark property rights case from Connecticut, upholding the authority of the City of New London to condemn homes in an aging neighborhood to make way for a private development of offices, condominiums and a hotel. It was a decision that one justice, who had written for the majority, later all but apologized for.

The reaction from the states was swift and heated. Within weeks of the court's decision, Texas, Alabama and Delaware passed bills by overwhelming bipartisan margins limiting the right of local governments to seize property and turn it over to private developers. Since then, lawmakers in three dozen other states have proposed similar restrictions and more are on the way, according to experts who track the issue.

  Now for the puzzle - who were the five Justices in favor, and who were the four opposed?  It's a long article, but only one Justice is mentioned:

The Supreme Court seemed to invite such a response in its narrowly written ruling in the case, Kelo v. City of New London. Justice John Paul Stevens, writing for the majority, expressed sympathy for the displaced homeowners and said that the "necessity and wisdom" of the use of eminent domain were issues of legitimate debate. And, he added, "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power."

Two months after the ruling, addressing a bar association meeting, Justice Stevens called it "unwise" and said he would have opposed it had he been a legislator and not a federal judge bound by precedent.

The life and hard times of Justice Stevens, strict constructionist.

Well.  Just as sophisticated Muscovites learned that it was what was *not* in Pravda that was as important as what was, so to do savvy readers of Pravda-on-the-East River know that the answers can often be found in the empty spaces.

In the case at hand, common sense guides the answer - if Justices Scalia and/or Thomas had led a majority that provoked this reaction, it would have been mentioned by the third paragraph.  Hence, even casual court-watchers unfamiliar with Steven's reputation will correctly guess the truth - the Kelo decision was achieved by the liberal members of the Court.

But it may take readers with a longer memory to recall that the Times editorialized *in favor* of Kelo at the time.  (Or, there is always the InstaPundit.)

Linda Greenhouse did not disguise the alignments when the decision came out:

Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy and David H. Souter joined the majority opinion in Kelo v. City of New London, No. 04-108. Justice Kennedy also wrote a separate concurring opinion to emphasize that while there was no suggestion in this instance that the plan was intended to favor any individual developer, "a court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see it if has merit."

Justice O'Connor's dissenting opinion was joined by Chief Justice William H. Rehnquist and by Justices Antonin Scalia and Clarence Thomas. She wrote that rather than adhering to its precedents, the court had strayed from them by endorsing economic development as an appropriate public use.

"Who among us can say she already makes the most productive or attractive use of her property?" Justice O'Connor asked.

She added: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."

Both Justice O'Connor and Justice Thomas, who also filed his own dissent, said the decision's burden would fall on the less powerful and wealthy.

"The government now has license to transfer property from those with fewer resources to those with more," Justice O'Connor said. "The founders cannot have intended this perverse result."

Justice Thomas, who called the decision "far reaching and dangerous," cited several studies showing that those displaced by urban renewal and "slum clearance" over the years tended to be lower-income minority residents.

"The court has erased the Public Use Clause from our Constitution," he said.

Gosh.  The Times missed a chance to laud the eerily prescient Justice Thomas.  Go figure.

Things You *Really* Don't Want To Overhear...

On the list of things you really don't want to hear: Jack Bauer muttering "It looks like its gonna be one of those days".

Showtime.

S-P-U-D

As negotiations between the White House and the Congress over what to do with the NSA program heat up, so has the Congressional game of SPUD.

The WaPo has the better story, but the Times has the (common) misuse of "quantum", so they are both fine.  From the Times:

After two months of insisting that President Bush did not need court approval to authorize the wiretapping of calls between the United States and suspected terrorists abroad, the administration is trying to resist pressure for judicial review while pushing for retroactive Congressional approval of the program.

The administration opened negotiations with Congress last week, but it is far from clear whether Mr. Bush will be able to fend off calls from Democrats and some Republicans for increased oversight of the eavesdropping program, which is run by the National Security Agency.

The White House prefers Congressional oversight to judicial oversight; Mark wonders why.

As to why Congress prefers judicial oversight, that is easy - since, Heaven forbid, we may be attacked again, no politician wants to be responsible for derailing this program.  But if it gets bogged down in the courts... waddya gonna do?

The heroes in Congress, after a few weeks of Voguing, passed the Patriot Act.  At crunch time, they will endorse the NSA program in a way that lets them deny any responsibility for killing it.

However, right now we have to pass through a wishful thinking phase.  Here is Sen. Lindsay Graham, from the Times:

"I do believe we can provide oversight in a meaningful way without compromising the program," he said, "and I am adamant that the courts have some role when it comes to warrants. If you're going to follow an American citizen around for an extended period of time believing they're collaborating with the enemy, at some point in time, you need to get some judicial review, because mistakes can be made."

Emphasis added.  When Gen. Hayden persuades him that he cannot have his cake and eat it too, and that choices must be made, what will Sen. Graham do?  The right thing, I have no doubt.

Or here is Rep. Jane Harman, from Meet The Press last week, trying to keep one foot on each island like a mighty Colossus:

REP. JANE HARMAN, (D-Calif.):  My briefings started in 2003 and have been in existence for about a year and a half, and I didn’t join this group until I was ranking member on Intelligence. The briefings were about the operational details of the program. I support the program, I’ve never flinched from that. However, the briefings were not about the legal underpinnings of the program, nor were they about the appropriateness of the Gang of Eight process. I talked to absolutely no one, because I would have violated three different federal criminal statutes had I talked to anybody.

[Emphasis added, and Big Skip]

REP. HARMAN:  Well, I wish I’d been a lot smarter in those briefings about the legal underpinnings of the program. That was not discussed in the briefings. The briefings were about the operational details of the program and only in the last briefing because I requested it ahead—this was after the president had disclosed the existence of the program—did we spend an hour on the process, which was a very valuable discussion. The vice president and others were there. But remember, we go into those briefings alone, we have no ability to consult staff, we have no ability to consult constitutional experts or legal experts on the history of FISA. Since the program has been disclosed, I—and I think all of us, at least I have become a lot smarter about all that, and now that I have read the legislative history of FISA, which was enacted in 1978 on a bipartisan basis to cure the abuses of the Nixon era that had preceded it, I understand that it is the exclusive way that we can eavesdrop on Americans in America.

Let’s—let’s understand that our Constitution really is the issue here. The Fourth Amendment requires probable cause to listen and seize property of Americans. Every one of us wants to catch al-Qaeda and its affiliates. All of us want the president to have the tools. I just voted again for the Patriot Act. I believe we need modern tools. And, oh, by the way, FISA was modernized eight times in the Patriot Act after 2001. It is not a quaint little old thing that doesn’t work here, it can work here, and I think the entire program should fit under FISA as currently drafted. We don’t even need to amend FISA.

And here is some more "what's it gonna be, girl?" from Jane Harman with Wolf Blitzer:

HARMAN: I think it should be brought under FISA. I think that this is a capability we need. But it must strictly comply with the law and with the Fourth Amendment.

The president is not above the law. His legal arguments just don't wash here. FISA contemplated a 15-day period after the declaration of war when one would not need warrants.

It's been four years after the declaration of war on Afghanistan and the president is still claiming this inherent authority.

I believe that FISA has been modernized by Congress in eight respects and fully covers any activity that the president should want to accomplish under this program.

And I also believe that he's violating the National Security Act of 1947 by failing to brief Congress completely and fully.

So Jane Harman's position as ranking House Dem on Intelligence is what?  She supports the program, we need the program, and she thinks it can fit under FISA without amendments.

Well, no one else seems to think so.  What's going to give?

My guess - in a triumph of wishful thinking, the Harman view will prevail - everything is fine!  Congress will get more and better briefings, the White House will promise not to blame them if things go wrong, and Congress will resume ducking this.

MORE:  Glenn Greenwald thinks the White House is trying to sweep this under the rug because they are running scared:

Ever since the NSA scandal began, Bush followers, led by Karl Rove, and even some frightened Democrats, have loudly insisted that this scandal is actually beneficial for Republicans, because they can use it to depict Democrats as weak on national security. Democrats want to hang up when Osama calls, while Bush is being aggressive in protecting our children from being blown up. As a result, they claimed, Republicans want this scandal to last as long as possible because it will only benefit Republicans politically and damage Democrats by highlighting their vulnerabilities.

While spouting that bravado, the Administration's actions reveal that they fear this scandal and want more than anything for it to disappear. At every turn, they have tried to prevent a meaningful investigation into the legality of their actions. If the NSA scandal is really the political weapon which the GOP can use to bash Democrats as being weak on national security, wouldn't the White House be doing the opposite - that is, encouraging every hearing and investigation possible?

Emphasis added, and let's just say, Uh huh.  The White House has said from Day One that talking about this program harms national security and alerts the enemy.  Fine, I have no doubt that many of Greenwald's followers assume the President is lying.  But let's admit that, at a minimum, by acting to move this "scandal" off the front pages the White House is behaving in a manner consistent with its lies.

Meanwhile, I miss the impeachment talk - perhaps Mr. Greenwald can predict for us when the Dems will restart that?  Or easier - when will he?

Moonbat Call-out!

William Safire is trying to ascertain the origin of "moonbats"; he mentions this in his column on blog jargon, and does a good job with "wingnuts":

The prevailing put-down of right-wing bloggers is wingnuts; this has recently been countered by the vilification of left-wing partisans who use the Web as moonbats, the origin of which I currently seek.

I question "recently"; I have the impression I have seen that for a while - Wikipedia says 2002.  Of course, Mr. Safire's notion of "recent" may not exactly reflect internet time.

Anyway, ideas for its origin?  Your chance for stardom.

The Rise Of The Cult, Day Three - Unanswered Challenges

When Peter Daou of the normally-serious Salon described some audience-boosting flatulence from Glenn Greenwald as "seminal", I took a bit of interest.  What I found was an utterly generic diatribe bashing Bush and his supporters.

Normally I follow the tack of most sensible bloggers and ignore these tirades - since they represent a near-automatic link from Atrios, Kos, and a few of the other blogs that traffic in this nonsense, I have long imagined that they were simply a useful device for boosting readership.  Hey, people like to vent, there is a readership for this, so live large.

But "seminal"?  Please - it never occurred to me that these rantings are meant to be serious objects of discussion.  The readers had their fun, move on - a few weeks ago the right was "frightened bedwetters", today Greenwald's seminal effort has us pegged as "Authoritarian Cultists", and a few weeks hence we will be something new (any chance of making the next one alliterative?  "Corrupt Christo-cultists", maybe?  Nah.)

My view remains that serious discussion of these Bush-bashing riffs makes as much sense as pondering the intellectual output of an open-mike beer-belching contest at spring break in Fort Lauderdale.  OK, that is a bit of a flawed analogy - with the Bush-bashers, it is a year-round activity.

However, Mr. Daou is deeply concerned about "Unanswered Challenges", so I am exhorting him to answer mine.  First, let's recap Greenwald's Garglings:

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based. And the more one criticizes him, by definition, the more "liberal" one is.

E-Z, yes?  Criticize Bush, and you will be re-labeled a "liberal".  Breakthrough stuff.

So, my three part challenge:

(1) As James Taranto noted, Greenwald's links don't actually lead to any supporting evidence - for example, careful link-followers will note that Andrew Sullivan implies that Brent Bozell re-labeled him, writing "All of that makes me a 'liberal.' "  However, Mr. Bozell (or whoever wrote this) said that Andrew "has been off the conservative reservation for at least a couple of years."  The word "liberal", which Andrew quotes, is applied to The New Republic, and I doubt they would object.

Or - if Messrs. Greenwald and Daou, or their supporters, could find real evidence of Cult leaders actually re-labeling Bush critics as "liberal", that would advance this seminal effort and deepen our understanding of this important work.

(2) Let's test the predictive power of this new social science hypothesis by applying it to the experience of Heather Wilson (R, NM).  On Feb 8 she broke publicly with Bush on NSA oversight, so the Cult has had almost two weeks to attack her.

Greenwald specifically cited Hinderaker, Malkin, Goldberg, Hewitt, and Goldstein.  So, and this couldn't be easier - how many of these five have re-labeled Heather Wilson a "liberal"?

Full Disclosure - I spent about five minutes with the Powerline search function and came up empty on "Heather Wilson".  I have not bothered to check the others.  Suspenseful, yes?  Let's fly under the bridge!

And please - if this is a cult, I expect the leaders to lead it.  Somewhere, in someone's comments section, almost anything can be found.  But if the best evidence anyone can find of Cult relabeling is from some unknown commenter at Protein Wisdom, bring it in so we can mock it. 

(3) If any of Team Daou/Greenwald are still with us, please try to respond to the point made by Taranto and others - if this is a Cult, why did so many conservatives rebel over Harriet Miers?  Or, to pick another, how about immigration reform?

This is so exciting - don''t you love it when a "seminal" work provokes discussion?  The old back and forth, conducted with mutual respect and motivated only by a desire for the truth?

OK, speaking for the Cultists, I can't say I sense a lot of mutual respect.  And given the absence of evidence on offer, I don't think either Daou or Greenwald hold any real evidence in advancing anyone's understanding or discerning "the truth".

But wasting a few more minutes highlighting the vacuity on display at Salon is fine with me.  If I had that perch, and was interested in promoting lefty bloggers, I hope I would push myself to offer my readership a bit more than the latest Bush-bashing ravings linked by Kos and Atrios - most folks who want that sort of intellectual pornography probably can find it with no help from Salon.

Just to give Mr. Daou a boost to get started - pick a post at random from The Anonymous Liberal.  Or check out The Next Hurrah - they aren't exactly undiscovered, but they aren't the Blog Monsters they could be, either.

OK, that's enough kisses of death for one morning.

FINAL:  Mr. Daou has his own little challenge "proving", to his satisfaction, that the media tilts right, with specific emphasis on the Cheney Valentine's Weekend Massacre.  And he is troubled that none on the right are rising t ohis challenge.  Gee - call folks "Authoritarian Cultists", and they tune you out - who wouldda thunk? 

Besides  - the VP shoots a man, and the press does not get told for nearly a day?  Of course that is news, and of course the press over-reacted.

Some quick thoughts:

(1) If a coin touted as "fair" comes up heads seventy-five times in one hundred trials, color me suspicious.  And please don't offer the twenty-five "tails" as proof that the coin is fair.

In this context, even if the media sometimes tilts right, that hardly proves it mostly, or always tilts right.  A real test would look at "all" the Cheney coverage, and who is going to do that?

(2)  David Gregory apologized for his outburst; Dana Milbank was scolded by the WaPo ombudsman.  Since these two were targets of criticism from the right, does this mean we win?

UPDATE:  I'm getting a real Protein Shake on the old traffic meter.  But will it stay down?

Oddly Inflammatory

The notably thoughtful and demure Elisabeth Bumiller of the Times appraises Mary Matalin's damage control effort in the recoil of Dick Cheney's attempt to gun down a senior citizen who was no doubt griping about the new Medicare drug benefit:

Mary Matalin, Vice President Dick Cheney's longtime troubleshooter, was sleeping in last Sunday when the phone jangled her awake at 8 a.m. She groggily picked it up to hear, 'The vice president shot somebody, and he's O.K.' "

"And I said," Ms. Matalin recounted, " 'Can I get a cup of coffee?' "

Fine, who cares?  But this sentence stands out like a shot of flaming tequila on a cold Saturday night:

Ms. Matalin, a former top aide to Mr. Cheney who was summoned back to the West Wing to help manage the crisis, offered a new glimpse, clearly from her own perspective, into some of the behind-the-scenes frenzy. She also described a vice president, who, she said, was in no condition in the hours after the shooting to speak out himself.

Emphasis added!  What is she telling us here?!?  And why do the Times editors think people won't leap to this innuendo?

Well.  What she is telling us is covered in the next paragraph:

She first talked to Mr. Cheney by phone around 10 a.m. Sunday, some 16 hours after he shot Mr. Whittington. "It was not to go through the statement or what do we do, it was to tell me it happened," said Ms. Matalin, a former campaign manager for the first President Bush who was known for her bare-knuckled outbursts.

She added, "It was so about Harry — 'I hit him and I can't believe it and he's such a good guy.'

"And I said, O.K., this guy is going to be worthless about getting me what I need to help him here,' " she added, speaking of Mr. Cheney. "He's so Harry-centric."

Ahh.

So far, and words cannot capture my disappointment, no one at Memorandum is leaping to this bait, and the two respondents are models of clarity and restraint.

But the day is young!

Don't Forget, Nominate A Vet

Adam Nagourney and James Dao of the Times write on an influx of veterans for Congress:

FOR Democrats struggling to win back Congress, it seemed like the most obvious of election strategies: erase the Republican advantage on national security by running real-life combat veterans as candidates.

In theory, at least, a candidate with a uniform, rank and military résumé should be redoubtable: a symbol of strength, patriotism and resolve, and at least somewhat inoculated from the debilitating personal attacks that have come to represent American politics.

So it is in the 2006 Congressional elections, soldier-candidates are marching across the campaign field in numbers not seen in a half-century, many veterans of the Iraq, Afghan, Vietnam, Balkan and first gulf wars — nearly 100 candidates in all, not including a single incumbent.

I found this segue to be utterly baffling:

Nor is it clear that these veterans will help the Democratic Party.

Many Democrats were cheered when James Webb, a former Vietnam veteran and Reagan-era Navy secretary, announced that he will seek the party's nomination to run against Senator George Allen, a Virginia Republican, this November. And he made his announcement after drawing notice for criticizing Republicans for trying to discredit war-hero candidates by attacking their combat records.

But Mr. Webb, an independent sort, might look to Paul Hackett for how things can go very wrong. Mr. Hackett, a loud, profane and unpredictable Iraq war veteran and Democrat, almost won a Congressional election in Ohio last year and had been running for the Senate this year.

But last week, he quit politics, declaring he had been forced out of the Ohio race by national Democratic leaders who had no faith in his electability in a statewide race. He also contended that he was the victim of a whispering campaign alleging he was responsible for war atrocities.

OK - what about Mr. Hackett's experience is Mr. Webb likely to experience?  Are Messrs. Mnagourney and Dao telling us that Dem leaders are about to pull the plug on his money?  Doe he have a secret past as a war criminal?

I've only read this twice - maybe someone else can find the answer.

MORE:  Background on Hackett at The Moderate Voice, Mother Jones, and Blogcritics.  My question is still open - did the Dem leadership really and truly blindside the Mighty Kos with this decision?  Where is the L-U-V?

No Respect - Joe Wilson Folio

The LA Times reprises the history of Niger uranium rumors, but we have homed in on their description of the genesis of Joe Wilson's trip:

The Pentagon report quickly drew the attention of Cheney, who asked his CIA briefer for more information.

The agency responded by sending Wilson, a retired diplomat who previously had gone to Niger for the CIA, to Niamey in February 2002. The CIA didn't send its own operative because the agency considered it "a wild goose chase," said a former senior intelligence official.

Wait a second - a "former senior intelligence official" is suggesting that the CIA went with Joe Wilson rather than Jack Bauer because they did not take the request seriously?

No way.  Well, OK, maybe a little way - per the SSCI Ms. Plame did apprise her hubby of the proposed trip with the news that there is this "crazy report" they would like him to check out.

But still - the notion that this trip was not taken seriously by the CIA, and that Wilson did not exactly represent the creme de la creme of investigative sleuths, is an old White House talking point.  Which "senior intelligence official" is parroting it now - State, CIA, DIA, where?

Good-Bye To Gitmo

Messr. Belgravitas is closing down Gitmo:

Guantanamo will be viewed by historians, when it's finally closed (it will be, I predict, at some point during the next Administration, whether Republican or Democratic--unless a mediocrity like George Allen or Bill Frist wins), as a misguided excess born of national trauma/panic post 9/11.

...There's a better way forward, and I'll be sketching it in the coming days. For now, suffice it to say I view protestations about Guantanamo being critical to our national security--so that it remains open into quasi-perpetuity--as unconvincing in the extreme. As bullshit, you might say.

Read it all and don't touch that dial.

NOTE:  In our new division of labor, Belgravitas gets Hamas and Gitmo, and I get Maureen.  Man, do I need to renegotiate.

They Will Do That, Won't They?

File this NY Times headline under "Those Pesky Defense Attorneys":

Prosecutor Says Libby Seeks to Thwart Criminal Case

An early clue came when Libby pleaded "Not Guilty".

The article covers the newly disclosed response by Special Counsel Fitzgerald to Libby's discovery request.  My thoughts here; let's get the ReddHedd, a prosecutor herself, in the mix here.

Let me add this - the Times dwells on "greymail" and the implausible request for the Presidential Daily Briefs.

However, and this is proprietary spin *not* to be attempted at home, greymail cuts both ways.  It just might be that the CIA launched their criminal referral back in 2003 as a bit of a dirty trick meant to help them in their then-raging battle with the White House. 

But now that we have come this far, it might be that the CIA (OK, key folks within it) would like to find a graceful way to back out of this before they have to explain to everyone their own gloomy tradecraft and inability or indifference to Ms. Plame's secret status.

Well here is one way out for the CIA - get all balky at defense requests, crater the prosecution, and blame Libby.  It's all good, as they win another PR victory.

Time may tell - the request for the Daily Briefs is hard to take seriously, but some of the other stuff will (I predict) go in Libby's favor.

So there you go - the prosecution may fold and blame Libby's obstruction for their inability to try him on obstruction.

MORE:  I'm watching Luci re-runs, so it is ReddHedd day here - she is quite cogent on greymail.

When Hacks Attack

Carl Hulse of the NY Times engages in a half-hearted Hack Attack on the Times very own St. John the McCain:

Foe of Earmarks Has a Pet Cause of His Own

WASHINGTON, Feb. 17 — It is just the sort of parochial spending request that might lead Senator John McCain, nemesis of pork barrel projects, to give somebody an earful.

The bill would direct $2 million annually over five years to establish a center at a specified law school to honor a renowned jurist from the state. While the goal may be laudable, some critics say, the measure is a classic case of lawmakers' trying to funnel money directly to a home-state institution for a project that should find financing elsewhere.

But it is doubtful that Mr. McCain will weigh in against the idea this time: the legislation to support the project is being sponsored by him and Senator Jon Kyl, Arizona Republicans who are among those aggressively promoting new rules for handling Congressional spending requests.

Senior aides to Mr. McCain say that he is pursuing the money for the center, a tribute to the late Chief Justice William H. Rehnquist, in the open, transparent way that such special spending pleas should be handled and that he does not consider the proposal an earmark, the type of measure he is attacking in new legislation. Others are not so sure.

"If it doesn't meet the technical term of earmark, it would probably meet the public idea of one," said Pete Sepp, a vice president at the National Taxpayers Union, who is an ally of Mr. McCain in the fight for new rules.

As Carl Hulse knows, and any careful reader will figure out, the Times is blurring two related issues - "pork", which we will describe as "wasteful" Federal spending that ought better to be done at a lower level of government, privately, or not at all; and "earmarks", which are a particularly surreptitious Congressional tool for sneaking pork into bills.

Mr. Hulse explains all this:

He and Mr. Kyl are seeking the money through a free-standing bill introduced in December, an approach that Mr. McCain's aides call a far cry from what he finds most objectionable: furtive efforts to slip through last-minute spending projects without prior Congressional scrutiny.

"You can have an issue with what the Rehnquist bill says, but it has gone through exactly the process that should be followed," said Pablo Chavez, general counsel to Mr. McCain. "It doesn't have the marks of an earmark."

In their push to rein in the explosion of spending on pet projects, Mr. McCain and others are concentrating on those tucked into the final versions of voluminous spending bills without first being approved as policy in a separate measure known as an authorization bill. The earmark bill he has introduced would allow lawmakers new avenues to strip those provisions from legislation and would require new disclosure of such requests and their sponsors.

Some others, mainly outside watchdog groups, take a broader view of what constitutes an earmark, defining it as any provision added to a larger measure in an effort to force spending on a specific project, particularly if the spending is not sought by the relevant federal agency.

Keith Ashdown, vice president for policy at Taxpayers for Common Sense, said he considered the Rehnquist Center initiative an "earmark in training." Should the proposal advance as a separate bill, Mr. Ashdown said, his group will have no objection. But if it is folded into broader legislation, then it could meet the earmark test.

So at this point John McCain, foe of both pork and earmarks, is offering a visible, stand-alone, porkish bill.  No one in the article thinks it is an earmark, or that this push by McCain contradicts his position taken on earmarks.

But with careful phrasing Mr. Hulse managed to preserve the suspense for several paragraphs.  And Dead Tree readers will note that this page A11 story gets a promotional blurb on the front page: "Pork Critic seeks $10 Million".

So why is the Times turning on their own St. John with this silly attack?  Have they moved on from McCain-Feingold, and are they positioning themselves for their endorsement of Hillary in 2008?

Who knows?

Maureen Dowd - Irretrievably Inaccurate

On the off-chance that anyone still reads Maureen Dowd, let me quickly praise her latest coinage - Cheney and Libby are now "Shooter and Scooter".

That is her highlight.  Now let's turn to this typically inaccurate passage from her latest message in a bottle to float to us from TimesSelect Island (aka "Lost"):

Asked by the Fox News anchor if a vice president had the authority to declassify secrets, Mr. Cheney replied that there's an executive order giving him that power, adding: "I've certainly advocated declassification and participated in declassification decisions." This neatly set up a defense for Scooter, who testified that "superiors" had authorized him to leak classified information on Valerie Plame.

Emphasis and groan added.  No, Maureen - the assertion, in a recently released letter from Special Counsel Fitzgerald, was that Libby had claimed to have been authorized to discuss parts of the 2002 National Intelligence Estimate.

EmptyWheel can provided the details for any doubters out there.  However, my impression is that Ms. Dowd has lost her fan base.

Battling The Cult

Glenn Greenwald attracted a fair bit of attention with his post explaining that some Bush followers are "authoritarian cultists".  Let's squeeze some juice on Saturday morning:

It used to be the case that in order to be considered a "liberal" or someone "of the Left," one had to actually ascribe to liberal views on the important policy issues of the day – social spending, abortion, the death penalty, affirmative action, immigration, "judicial activism," hate speech laws, gay rights, utopian foreign policies, etc. etc. These days, to be a "liberal," such views are no longer necessary.

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based. And the more one criticizes him, by definition, the more "liberal" one is. Whether one is a "liberal" -- or, for that matter, a "conservative" -- is now no longer a function of one’s actual political views, but is a function purely of one’s personal loyalty to George Bush.

...And in that regard, people like Michelle Malkin, John Hinderaker, Jonah Goldberg and Hugh Hewitt are not conservatives. They are authoritarian cultists. Their allegiance is not to any principles of government but to strong authority through a single leader.

Whatever.  Look, the point of these Bush-bashing diatribes is not to make sense - there is a virtually insatiable internet market for anyone interested in trying to stretch "Bush Sucks" into five thousand or more words.  I imagine that, as podcasting develops, we will see this genre set to a danceable beat so that the target market can tap their toes and sway to the cadence. 

And as with other pop songs, a memorable tagline is important; "authoritarian cultist" provides a wonderful mix of menace and intellectual heft.

Beyond the tagline, Greenwald was also shrewd enough to position this post in a way that appealed to Andrew Sullivan's sense of victimhood - Andrew, the Solitary Soldier of Truth, Bravely Battling the Bushies... this tirade had to go to Number One, with a bullet!

But fun's fun.  James Taranto took the trouble to follow the links and see just what evidence Mr. Greenwald offered in suppport of his thesis.  What he found was not enough to get a passing grade on a seventh-grade paper, but was evidently more than enough for the Self-Invented Reality Based Community.  What's next for the "Best Of" team - in the weekend edition, will Mr. Taranto fisk "Stairway to Heaven"?  (How could all that glitters be gold, anyway - what about diamonds and rubies?)

The Bull Moose offered a few sagacious paragraphs, but we will steal only this:

Yes, there is an element of conservatism that attempts to apply a Lenninist discipline on ideological heterodoxy. In fact, the Moose was the target of their efforts. The Moose has enjoyed the distinct pleasure of being labeled both a Republican squish and a Rovian plant. But, based upon personal exposure to both sides of the political spectrum, this mammal can confidently observe that there is more tolerance for differences on the right side of the spectrum than on the left.

While Greenwald suggests that "loyalty" to Bush is the requirement for the right, the standard to to be a member in good standing of the liberal/left community is hatred of Bush.

Emphasis added.  The always dry and sly Peter Daou is kind enough to illustrate this very point as he praises the Greenwald gurgitation:

Lately, there's been a burst of energy in the progressive blog world, with dozens of great posts from high profile - and high traffic - bloggers on Daily Kos, Eschaton, HuffPo, C&L, FDL, MyDD, TPM,  and several others. Among those blog entries are two seminal posts, one by Digby, the other by Glenn Greenwald.

Mr. Daou goes on to link to "a definitive piece on the "Cult of Bush".  But eventually, way down in a note at the bottom, he lets his readers in on the joke - Daou is making the same sort of assumption about Greenwald's politics (Greenwald is bashing Bush, he must be a progressive) that Greenwald is decrying in the post Mr. Daou praises.

[Oh, do you not trust my characterization of Mr. Daou's end note?  See for yourself:

NOTE: Although this piece is about the trajectory of progressive blogging, I should note that Greenwald's post is not written from a specific ideological perspective.

Why Mr. Daou chose a "seminal" but non-ideological blog post to celebrate the week in progressive blogs remains a bit of a mystery.  Another mystery - is that a "NOTE", or, more precisely, an "UPDATE"?  Put another way, did Mr. Daou seriously not realize that his "NOTE" and his opening paragraph contradict each other, or did he add the "NOTE" later, perhaps after outside intervention?  Answer: these are activists blogs, so say it with me - facts don't matter!]

Messrs. Greenwald and Sullivan chortle over that very "mistake" when made by Bush supporters, so I have no doubt they enjoyed the Daou drollery.

Meanwhile Bush supporters have been beside themselves all week, and are no doubt trembling in fear of the next lash from Greenwald's cat o' nine tails.  Or maybe they are watching the Olympics.  No worries.  A few weeks ago, we were "frightened bedwetters"; now we are "authoritarian cultists"; in a few weeks, we will surely be "authoritarian bedwetters", or something else entirely.  The well of juvenile insults is bottomless.

Meanwhile, my one secret hope - that a notable Dem would actually pick up on one of these silly, self-defeating themes - remains unanswered.  Too bad.  Don't we all agree that if Howard Dean had any stones, he would say "authoritarian cultists" right there on national television?  Howard, you hold the fate of a nation right there in your hand, or mouth anyway.  Go!

BONUS:  Let me offer supporters of the "authoritarion cultist" theory an easy shot at the hoop - George Will whacked Bush for the NSA program on Wednesday; Heather Wilson, the Congressfolk from New Mexico whose national reputation does not precede her, broke with Bush on the NSA program a bit more than a week ago.

So it should be easy to document attempts by the Cult to re-label Will and Wilson, yes?

If you need to keep it simple - Greenwald cited "Michelle Malkin, John Hinderaker, Jonah Goldberg and Hugh Hewitt".  Jeff Goldstein also earned a mention somewhere.  That is not a lot of looking to do, and evidence of the Cult should abound, yes?

I have no doubt that the many hard-headed, truthseeking members of the Self-Invented Reality Based Community will rise to this modest challenge.  Just as I have no doubt they carefully evaluated the "evidence" offered by Glenn Greenwald last week before shouting "Huzzah!".

LAST THOUGHT 'TIL THE NEXT ONE:  A careful re-reading of the Andrew Sullivan post that started it all shows Andrew using the word "liberal" in quotes, as in:

I'm a little stunned that this is now something that now requires one to be seen as a "liberal."

However, following the links, Bozell never called Sullivan a liberal - that word was applied to The New Republic magazine (and is truth a defense here?).  Bozell (or whoever wrote the piece) says that "Andrew Sullivan has been off the conservative reservation for at least a couple of years", but surely there are other reservations than Camp Left on Dean Island that might hold Andrew.  Militant libertarians?

Sullivan and Greenwald - could be a great name of a law firm.  But don't count on them to actually read the evidence.

AND ONE MORE THING:  James Taranto links to the wrong Greenwald diatribe (Jan 16, 2006), or at least, his excerpt does not match the diatribe to which he linked.  The Feb 12 tirade is correct.  We will accept the "They all read the same" defense, this time.

The Latest Fitzgerald Filings

Diggers delight - here is a 30 page .pdf file containing Special Counsel Fitzgerald's response to Libby's discovery request.

The original discovery request is linked here, so you can see how the high-priced talent plays point-counterpoint.

It is a bit late for me to spot anything other than the clearest diamond, and none jumped out at me.

However, I liked this, from p. 13, on the question of whether Fitzgerald should turn over more of what he learned from other reporters:

Nor is the defendant entitled to know the identity of every reporter’s source in order to prove that such a source may not have “considered” Ms. Wilson’s employment classified, or to be able to investigate the possibility that Ms. Wilson’s employment was actually well known outside the intelligence community before July 14, 2003. Since the withheld evidence is not relevant, much less material, it certainly cannot be characterized as “favorable” to the defense within the meaning of Brady.

Well, saying the evidence is not relevant or material is not enough to make it irrelevant and immaterial.  I think it is great that Fitzgerald managed to write that with a straight face (assuming he did), but I will be surprised if a judge goes along.

Section 3, covering the defense request for CIA material about the harm done by the leak, is fascinating:

3. Request for Information Concerning Damage Caused By the Disclosure

The defendant also argues that he is entitled to information about any assessment of the damage caused by the disclosure of Ms. Wilson’s employment because “potential harm to national security was a focus of the government’s investigation.” (Memo. at 4). This claim is illogical. First, there were many things that were investigated that are not reflected in the charges in the indictment. The actual – as opposed to potential – damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation. The indictment alleges only that the outing of CIA employees could cause damage. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters.

Even if the defendant had been charged with a violation of either the Espionage Act (18 U.S.C. § 793) or the Intelligence Identities Protection Act (50 U.S.C. § 421), there would be no requirement for the prosecution to prove actual damage, much less obtain, or produce, a damage assessment prior to trial. Actual damage is not an element of either substantive offense. A fortiori, where as here Libby is charged only with obstruction offenses, there is no basis for requiring discovery of any documents bearing on a damage assessment.  Libby makes the argument that “[i]f the evidence shows that this disclosure did very little, if any, harm to national security, this fact will undermine the prosecution’s expected argument that Mr. Libby had a motive to lie to cover up his alleged disclosure of Ms. Wilson’s CIA affiliation.” Even if the defendant were to contend that at the time he spoke to the FBI and testified to the grand jury, he did not believe that any actual damage had resulted from the earlier disclosure so that he had no reason to lie, this purported belief could not have been based upon any official government analysis that he never saw, and that had yet to be undertaken.

Moreover, the publication of any informal assessment of actual damage caused by the leak could compound the damage by disclosing intelligence sources and methods. Given that the defendant has not established that such an assessment would be material, much less “helpful” to the defense, there is no basis even to consider providing him with access to such sensitive classified information. See United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989).

In any event, the defendant’s entitlement to documents related to the assessment of actual damage is appropriately addressed in an ex parte filing pursuant to Section 4 of CIPA, and the government will follow this course.

Emphasis added.  Again, we will see what the judge says.  But suppose Libby's defense includes the argument that no one, in June, July, September, or October of 2003, hinted to him that Ms. Plame's status was a problem and that a leak could be (or had been) damaging to national security.  In that case, confirmation of Libby's extraordinary intuition (or contacts) ought to be relevant, since it would support his absence of a motive.

Fitzgerald does use the word "greymail", and his arguments against the request for the Presidential Daily Briefs seem fine; that was never going to be approved anyway.

Meanwhile, Back At The Grassy Knoll

A second shooter?  The pieces are falling into place...

Cheney Claims Declassification Power

My goodness - Dick Cheney is now saying the same thing I said last week, and last year.  Let Dick tell it:

When Special Counsel Patrick Fitzgerald revealed Libby's assertions to a grand jury that he had been authorized by his superiors to spread sensitive information [Note: "sensitive information" refers to the 2002 National Intelligence Estimate, not Valerie Plame's CIA status], the prosecutor did not specify which superiors.

But in an interview on Fox News Channel, Cheney said there is an executive order that gives the vice president, along with the president, the authority to declassify information.

"I have certainly advocated declassification. I have participated in declassification decisions," Cheney said. Asked for details, he said, "I don't want to get into that. There's an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president."

I had cited Executive Order 12958 from Bill Clinton, 1995.  However, it was supplanted by a revised version (EO 13292) in (care to guess?) March 2003.  The revisions specifically create a role for the Vice President.  Here is an example from Part 1, relating to Classification Authority:

EO 12952 (1995):

Sec. 1.3

(c) Delegation of original classification authority.

...(3) "Secret" or "Confidential" original classification authority may be delegated only by the President; an agency head or official designated pursuant to paragraph (a)(2), above; or the senior agency official, provided that official has been delegated "Top Secret" original classification authority by the agency head.

EO 13292 (2003)

[1.3 (c) (3) ] "Secret" or "Confidential" original classification authority may be delegated only by the President; in the performance of executive duties, the Vice President; or an agency head or official designated pursuant to paragraph (a)(2) of this section; or the senior agency official described in section 5.4(d) of this order, provided that official has been delegated "Top Secret" original classification authority by the agency head.

Thanks to Cathy and Rick for their guidance on this.

UPDATE:  I *knew* someone mocked this idea at the time!  Well, they laughed when I stepped up to the keyboard...

OK, let's serious up - Kevin Drum (in his UPDATE) translated my suggestion that it may be legal for Cheney to declassify some material into "Tom Maguire suggests that even if Cheney's the leaker [to Bob Woodward], he didn't do anything wrong".  Hmmph.  First, not everything that is wrong is also illegal.  And somehow, "didn't do anything wrong" also managed to overlook this paragraph from my post:

My official position is this - if Cheney was Woodward's source, he ought to be impeached.  Not for any national security issues, or legal reasons - he ought to be impeached for utter gutlessness.

Whatever.  The agit-prop sites have a job to do, but getting the facts right isn't it.

MORE:  Hmm, the AP wrote that "Cheney said there is an executive order that gives the vice president, along with the president, the authority to declassify information."

But Cheney is not quoted as specifically addressing his de-classification authority.  But that said, I expect he has enough influence in the White House that if he tells his staff that something will be declassified, they believe it, and he can get it done.

Or, we could check the transcript (right at the bottom):

HUME: Let me ask you another question. Is it your view that a vice president has the authority to declassify information?

CHENEY: There is an executive order to that effect.

HUME: There is.

CHENEY: Yeah.

HUME: Have you done it?

CHENEY: Well, I have certainly advocated declassification. I have participated in declassification decisions.

HUME: Have you —

(CROSSTALK)

CHENEY: I don't want to get into that. There's an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.

Bless It And Move On

The Senate looks as if it is going to figure out how to quietly OK the NSA warrantless eavesdropping.

But has the House resolved the impeachment question?  Keep hope alive!

This Meet The Russert transcript from last Sunday is pretty interesting, as a study in buck-passing.

The guests were Senators Roberts and Daschle, and Congressfolk Harman and Hoekstra, all of whom were briefed on the program.

The key dynamic seems to be this - since, God forbid, we may be attacked again, no politician wants to be tagged as the person who disrupted the NSA program and let Americans die.  Bold.

Paul Hackett Moves On (Sans Org)

Netroot darling Paul Hackett, who lost so nobly in an Ohio by-election, has, per the Times, dropped out of the both the Ohio Democratic Senate primary tussle and all of politics.  Why?  The Dem machine pushed him out:

Paul Hackett, an Iraq war veteran and popular Democratic candidate in Ohio's closely watched Senate contest, said yesterday that he was dropping out of the race and leaving politics altogether as a result of pressure from party leaders.

Mr. Hackett said Senators Charles E. Schumer of New York and Harry Reid of Nevada, the same party leaders who he said persuaded him last August to enter the Senate race, had pushed him to step aside so that Representative Sherrod Brown, a longtime member of Congress, could take on Senator Mike DeWine, the Republican incumbent.

Mr. Hackett staged a surprisingly strong Congressional run last year in an overwhelmingly Republican district and gained national prominence for his scathing criticism of the Bush administration's handling of the Iraq War. It was his performance in the Congressional race that led party leaders to recruit him for the Senate race.

But for the last two weeks, he said, state and national Democratic Party leaders have urged him to drop his Senate campaign and again run for Congress.

Whatever.  We are more intrigued by the reaction of the left blogosphere.  MSNBC tells us that:

Democratic bloggers abuzz over Hackett exit
Activists angry Marine reservist was allegedly pressured out of Ohio race

And MSNBC should know - they quote Kos himself, two other bloggers and a commenter at MyDD.

More reaction can be found at Memeorandum.  Lots more.

And in looking through it, I am surprised by the surprise.

What happened to all weekly conference calls between netroot activists and top Dem strategists?  How could The Machine have pulled the plug on Hackett without even running it by their netroot base?  Where is the L-U-V?  Where is the R-E-S-P-E-C-T?  Where is the courtesy call?

Here are two early reactions from Kos.  He doesn't say he was tipped in advance, and he doesn't say he wasn't.   All very odd.

And his first reaction was to defend and explain the Machine decision.  Maybe he got a heads up, at least.  Who knows?  But perhaps this is a straw in the wind as the Dem establishment tries to regain low earth orbit despite the enthusiasm for interstellar exploration on the part of their netroots.

Blogger v. Blogger (O, Canada! Edition)

So who is up to speed on Canadian libel law?  Yeah, me too.

Well, a Canadian blogger, Mark Bourrie, is being sued for libel by Warren Kinsella, a Canadian columnist with the National Post, a blogger, and, from his own bio, a "lawyer, author and consultant".

I know you want to see the offending words.  Just so you know, they are workplace-safe and child friendly; in fact, do not read this while driving or operating heavy machinery:

4. Mr. Bourrie's entry on Ottawa Watch at 4:15 a.m. on January 14, 2006 read, in part:

And they remember Kinsella was executive assistant to Pulis [sic] Works minister (sic] David "I'm entitled to my entitlements" Dingwall. Kinsella was the guy who foisted Chuck Guite on the bureaucracy. He was a key actor in the sponsorship kickback scandal. And that scandal is about half the reason Paul Martin is on the skids. (Hereinafter the "Libelous Words").

They sure do scorch 'em up North, ayuh?

To compound the absurdity, this fight is apparently based on an ambiguous pronoun - did you think that Kinsella was the key actor in the sponsorship kickback scandal, or did you ride with the new entrant and figure "he" meant Chuck Guite? 

There's a tip for bloggers everywhere - be clear with your pronouns or you may be sued for $600,000 (Canadian, but still).  As it happens, the author intended to refer to Chuck Guite.

Now, I know nothing about Canadian politics (and yes, ignorance *is* bliss), but a few minutes with Google tells me this - we are talking about AdScam, back when The Captain nearly brought down the Canadian government.  Well, sorta nearly.

Cool.  Blogger sued for poor use of pronoun; beats curling, anyway.  Bring it.

UPDATE:  Some Canadian libel law background:

For a finding of liability for the tort of defamation in Canadian realspace and then as applied to Cyberspace, three elements must be proven. First, the plaintiff must demonstrate that the defamatory charge was published; this does not mean that the defamation must have been printed and distributed, rather it is sufficient that the statements have been communicated to a person other than the plaintiff. Second, the plaintiff must establish that the defamation expressly, or by reasonable implication, referred to him/herself. Third, the materials must have been false and, in the eyes of a reasonable person, discrediting to the plaintiff.(13)

As noted by Dietrich, it is not necessary for the plaintiff to prove that the defendant intended to defame. Nor must it be proven that the defendant did lower the plaintiff's reputation in the minds of persons accessing the materials and that the plaintiff actually suffered any damages from the defamatory materials.(14) The onus lies with the defendant. As the threshold for what is defamatory is low, the majority of the courts time is spent assessing whether the defendant has one of the defences available.

Sounds like being the plaintiff is the easier side.  On the other hand, if your nickname is "Prince of Darkness", what sort of reputation are we talking about?  And this legal summary gives some oxygen to the defense.

Good For Bill

Bill battles the bulge:

Former President Bill Clinton and officials from a health foundation on Monday unveiled a plan to fight childhood obesity with better school meals and more exercise.

The Robert Wood Johnson Foundation put up an $8 million grant to back the Clinton-backed Alliance for a Healthier Generation, which also will work with teachers to encourage them to be healthier role models for kids.

More than 9 million U.S. children over the age of 6 are considered obese, and during the past three decades, obesity rates tripled among U.S. children aged 6 to 11, according to data from the Johnson Foundation.

"Just The Facts" Versus "Check The Statutes"

The Saturday Times reported on the widening probe into the NSA leaks, but we were especially intrigued by this:

The Justice Department took the unusual step of announcing the opening of the investigation on Dec. 30, and since then, government officials said, investigators and prosecutors have worked quickly to assemble an investigative team and obtain a preliminary grasp of whether the leaking of the information violated the law. Among the statutes being reviewed by the investigators are espionage laws that prohibit the disclosure, dissemination or publication of national security information.

What?  They are reviewing the statutes to see if a law has been broken?  Didn't these guys listen to Patrick Fitzgerald's press conference, when he explained that that is exactly the *wrong* way to run an investigation?

Here we go:

So let me tell you a little bit about how an investigation works.

Investigators do not set out to investigate the statute, they set out to gather the facts.

It's critical that when an investigation is conducted by prosecutors, agents and a grand jury they learn who, what, when, where and why. And then they decide, based upon accurate facts, whether a crime has been committed, who has committed the crime, whether you can prove the crime and whether the crime should be charged.

Agent Eckenrode doesn't send people out when $1 million is missing from a bank and tell them, "Just come back if you find wire fraud." If the agent finds embezzlement, they follow through on that.

That's the way this investigation was conducted. It was known that a CIA officer's identity was blown, it was known that there was a leak. We needed to figure out how that happened, who did it, why, whether a crime was committed, whether we could prove it, whether we should prove it.

Guns Don't Shoot People; Dick Cheney Shoots People

The gang that couldn't shoot straight takes its act on the road, and the most dangerous man in Washington DC shows he is also the most dangerous man in South Texas:

Vice President Dick Cheney accidentally shot and wounded a prominent Austin, Tex., lawyer on Saturday while the two men were quail hunting in South Texas, firing a shotgun at the man while trying to aim for a bird, a member of the hunting party said.

Mr. Cheney, a practiced hunter, shot the lawyer, Harry Whittington, on an outing at the Armstrong Ranch in South Texas. Mr. Whittington, 78, was taken by helicopter to Christus Spohn Memorial Hospital, where he was listed in stable condition in the intensive care unit on Sunday, according to Michele Trevino, a hospital spokeswoman.

The Times even provides a motive for the attempted assassination:

In 1999, George W. Bush, then governor of Texas, named Mr. Whittington to head the Texas Funeral Service Commission, which licenses and regulates funeral directors and embalmers in the state. When he was named, a former executive director of the commission, Eliza May, was suing the state, saying that she had been fired because she investigated a funeral home chain that was owned by a friend of Mr. Bush.

The suit was settled in 2001, but the details were not disclosed. Mr. Whittington still serves in the position.

If I. Lewis Libby had not been forced to resign, Dick Cheney would not have had to get his hands dirty with this.

More background on the Texas Funeral Service Commission here.

UPDATE:  Some coverage of the cover-up. 

Friday Night Ice

It's hockey time!  Or at least, time to chat a bit about the hockey stick - the WSJ has a climate change article up:

Seeking to resolve a scientific dispute that has taken on a rancorous political edge, the National Academy of Sciences said it had agreed to a request from Congress to assess how well researchers understand the history of temperatures on earth.

The study by the academy, an independent advisory body based in Washington, will focus on the "hockey stick," a chart of past temperatures that critics say is inaccurate. The graph gets its name because of the sudden, blade-like rise of recent temperatures compared with past epochs.

...Dr. Mann's critics, including two amateur Canadian climate researchers, say his work contains serious inaccuracies. Dr. Mann has denied that, but the debate has prompted several climate researchers to take a fresh look at temperature reconstructions.

I don't know why the WSJ does not name them, but (unless there are two other Candians also pushing this), here is the website covering the work of Steven McIntyre and Ross McKitrick.  Steve McIntyre also blogs.

Caution - the critique involves some heavy statistical lifting.  Suitable for the weekend?  You make the call!

I'll Provide The Tale Told By An Idiot...

Kind words from the Prof inspire me to provide some helpful advice to journalists.

Murray Waas had a (typically) good article yesterday in the National Journal on Dick Cheney's involvement in the Plame investigation, based on documents released last week and supported by some new quotes from his uncanny sources close to the investigation.

And Mr. Waas certainly moved the needle - the NY Times went wild:

The letter was first reported Thursday by the National Journal, which said its sources had identified that one of the superiors was Mr. Cheney.

"The letter was first reported"?  Even the Times had noted it a week ago.

By contrast, the WaPo was restrained to the point of accuracy:

The National Journal first reported on its Web site yesterday that Cheney had provided the authorization.

And the AP managed to shake some new quotes out of people.

Well, here comes the handy hint, which should be especially helpful to the Times - check a few blogs before putting on the big floppy shoes and commencing the clown show.

For example, here is the Emptywheel, from (I'm embarrased for the Times as I type this) Feb. 1:

Two more bits. First, we learn from this that the intent of the July 8 conversation--the one where Judy had to come to DC for breakfast at the St. Regis? Well, the stated reason for that meeting was so Libby could leak the classified contents of the NIE to Judy. Now, apparently Libby "was authorized to disclose information about the NIE to the press by his superiors." (6) Hmm. Libby is the Chief of Staff to the VP. Who are his superiors. Hold on, I know!! Dick Cheney! George Bush! Both telling Libby to go peddle classified information to journalists. Nice crowd, this Bush White House.

No, no one close to the investigation confirmed that guess at that time, but really - a big time reporter might have found a clue or two in that passage.

Or here is ReddHedd, from the firedoglake team cited above:

...but suffice it to say Fitz dangles out an intriguing tidbit: Libby disclosed information regarding the National Intelligence Estimate (NIE), and was authorized to do so by his superiors, according to Libby's own testimony to the Grand Jury. Fitz goes on to say that the NIE information was a basis for his discussion with Judy Miller on July 8, and that it is "inextricably intertwined with the narrative of events of Spring 2003," as Libby's testimony makes plain. Well, isn't that juicy?

C'mon, leads are hiding in plain sight.

The Case Against "Me-Too" Journalism

Neil A. Lewis of the NY Times takes on the story broken yesterday by Murray Waas in The National Journal, with embarrassing results.

The Times is OK with the lead:

WASHINGTON, Feb. 9 — I. Lewis Libby Jr., the former chief of staff to Vice President Dick Cheney, told a grand jury that he was authorized by his "superiors" to disclose classified information to reporters about Iraq's weapons capability in June and July 2003, according to a document filed by a federal prosecutor.

The document shows that Mr. Libby, known as Scooter, was actively engaged in the Bush administration's public relations effort to rebut complaints that there was little evidence to support the claim that Saddam Hussein possessed or sought weapons of mass destruction, which was used to justify the invasion of Iraq.

It is only the details that go awry:

...The prosecutor's note of Jan. 23 does not, however, make any reference to Mr. Libby's involvement in the disclosure of Ms. Wilson's identity. It seems, rather, to be part of an effort by the prosecutor to demonstrate that Mr. Libby was engaged in using secret information to press the administration's case at the same time that Ms. Wilson's identity was leaked to reporters.

The letter was first reported Thursday by the National Journal, which said its sources had identified that one of the superiors was Mr. Cheney.

"The letter was first reported Thursday by the National Journal"?  C'mon, set aside the fact that bloggers have been chewing on that letter for a week; other aspects of this letter have even made it to the mainstream press (WSJ, WaPo, Times).  And the notion that the letter does not "make any reference to Mr. Libby's involvement in the disclosure of Ms. Wilson's identity" is absurd.

Continuing:

The National Intelligence Estimate, which was done in October 2002, said that Iraq "will probably have a nuclear weapon during this decade," but it included some dissenting views. The report was classified.

But amid doubts about the rationale for the invasion of Iraq some of which were attributable to Mr. Wilson's Op-Ed article, the administration declassified the report on July 18.

Well, parts of the NIE were declassified - that is almost the same thing.

Mr. Fitzgerald said in his letter that Mr. Libby discussed the contents of the classified report in a July 8 meeting — 10 days before it was declassified — with Judith Miller, then a reporter at The Times. Ms. Miller, who spent 85 days in jail before agreeing to testify in the leak case, has told the grand jury that Mr. Libby told her about Ms. Wilson at the same meeting.

I am certain others were sooner, but Mike Isikoff pointed out that what Libby told Ms. Miller about the NIE was not confirmed by its subsequent release.

OK, enough Times-bashing.  The Waas article attracted lots of commentary yesterday, but let me toss in one point.  From Waas:

Vice President Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, testified to a federal grand jury that he had been "authorized" by Cheney and other White House "superiors" in the summer of 2003 to disclose classified information to journalists to defend the Bush administration's use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records.

Libby specifically claimed that in one instance he had been authorized to divulge portions of a then-still highly classified National Intelligence Estimate regarding Saddam Hussein's purported efforts to develop nuclear weapons, according to correspondence recently filed in federal court by special prosecutor Patrick J. Fitzgerald.

So, Cheney was authorizing Libby to disclose classified info.  Keep in mind that de-classification is an Executive Branch function, and let me toss in this from Fitzgerald's now-famous letter (via Byron York).  Special Counsel Fitzgerald was explaining the possible importance of Judy Miller's testimony, but had already heard from Administration figures:

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

Let's note that there might be some haze around the phrase "direct evidence" - if, for example, Cheney testified that he told Libby that Ms. Plame was covert, but nothing to that effect shows up in Libby's notes or subsequent conversations, does Fitzgerald have "direct evidence" of Libby's knowledge, or not?

That asked, the Libby indictment notes several conversations between Libby and government officials about Ms. Plame - if anyone had said she was covert, wouldn't that have been mentioned?

"Covert" is word Fitzgerald did not want to use at his press conference, and he did not use it unambiguously in his subsequent correspondence, as noted by both Byron York and Mark Kleiman.  Well, I am a broken record on this - until I see actual evidence, I am stuck on the notion that Ms. Plame's status was classified, she had been covert at one time, but as of June/July 2003, she was not a covert agent as defined by the relevant statute.

FWIW, that is a separate question from whether the leak of her CIA role actually harmed national security; Bob Woodward and Andrea Mitchell said no, Fitzgerald is not saying (and does not want to disclose that to Libby's team) but again, who knows?

NOTE:  Fitzgerald did pass over this at his press conference; he circled around the topic and delivered something for everyone:

Now Nagourney Tackles Conservatives

We last noted Timesman Adam Nagourney decrying the state of the Democratic Party; now he turns his attention to conservatives.  Yes, that is not quite symmetric - shouldn't he be comparing Democrats and Republicans, or liberalism and conservatism?  Don't vex me (or him) - who said these were meant to be companion pieces, anyway?

Briefly, we are ecstatic about Alito and Roberts, and concerned about the war, Federal spending, the NSA surveillance program, and immigration reform.  Mr. Nagourney mentions corruption (wistfully?) but moves on.

Here is the CPAC program which inspired the article.  Michael Barone will tackle corruption on Friday; a discussion on new and old media will include Glenn Reynolds (and I see there was a workshop on blogging); no mention of McCain-Feingold.

I will go out on a limb and speculate that The Corner will have good coverage of the conference.

Porter Goss: Loose Lips Sink Spies

CIA Director Porter Goss writes in the NY Times about press leaks:

Loose Lips Sink Spies

By PORTER GOSS

Washington

At the Central Intelligence Agency, we are more than holding our own in the global war on terrorism, but we are at risk of losing a key battle: the battle to protect our classified information.

Judge Laurence Silberman, a chairman of President Bush's commission on weapons of mass destruction, said he was "stunned" by the damage done to our critical intelligence assets by leaked information. The commission reported last March that in monetary terms, unauthorized disclosures have cost America hundreds of millions of dollars; in security terms, of course, the cost has been much higher. Part of the problem is that the term "whistleblower" has been misappropriated. The sharp distinction between a whistleblower and someone who breaks the law by willfully compromising classified information has been muddied.

As a member of Congress in 1998, I sponsored the Intelligence Community Whistleblower Protection Act to ensure that current or former employees could petition Congress, after raising concerns within their respective agency, consistent with the need to protect classified information.

Exercising one's rights under this act is an appropriate and responsible way to bring questionable practices to the attention of those in Congress charged with oversight of intelligence agencies. And it works. Government employees have used statutory procedures — including internal channels at their agencies — on countless occasions to correct abuses without risk of retribution and while protecting information critical to our national defense.

On the other hand, those who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk. It is unconscionable to compromise national security information and then seek protection as a whistleblower to forestall punishment.

 

By odd coincidence we had cited this law and made a similar point a while back (but we used more than  three paragraphs) - there is a legal way to "blow the whistle" on abuse in the intel community, and running to the NY Times is not it.

A certain side of the Plame debate will find this next bit to be heartening.  My fingers are in my ears:

Revelations of intelligence successes or failures, whether accurate or not, can aid Al Qaeda and its global affiliates in many ways. A leak is invaluable to them, even if it only, say, prematurely confirms whether one of their associates is dead or alive. They can gain much more: these disclosures can tip the terrorists to new technologies we use, our operational tactics, and the identities of brave men and women who risk their lives to assist us.

Goss tackles the story about Osama ending his use of his satellite phone:

Recently, I noticed renewed debate in the news media over press reports in 1998 that Osama bin Laden's satellite phone was being tracked by United States intelligence officials. In the recent debate, it was taken for granted that the original reports did not hurt our national security efforts, and any suggestions that they did cause damage were dismissed as urban myth. But the reality is that the revelation of the phone tracking was, without question, one of the most egregious examples of an unauthorized criminal disclosure of classified national defense information in recent years. It served no public interest. Ultimately, the bin Laden phone went silent.

Hmm, the critics will hammer this - both Glenn Kessler of the WaPo pointed out that there had been prior reports of Osama's phone habits, and David Benjamin of Slate notes that the Washington Times reporter in 1998 had never been asked to hold the story 9and never thought to ask, it seems).

Well - for any who doubted, the Times seems to be in the crosshairs:

I take seriously my agency's responsibility to protect our national security. Unauthorized disclosures undermine our efforts and abuse the trust of the people we are sworn to protect. Since becoming director, I have filed criminal reports with the Department of Justice because of such compromises. That department is committed to working with us to investigate these cases aggressively. In addition, I have instituted measures within the agency to further safeguard the integrity of classified data.

Hillary Blasts Bush

From Newsday:

WASHINGTON -- Ignoring GOP criticism that she's too angry for prime time, Sen. Hillary Rodham Clinton Wednesday walloped Karl Rove and President George W. Bush for "playing the fear card" on terrorism and for failing to kill "the tallest man in Afghanistan," Osama bin Laden.

Maybe we should announce a basketball try-out...

In related news, George Bush will provide some details about his masterful leadership in foiling a 2002 terror plot.  Any chance that the NSA surveillance was a factor?

Details will eventually appear at this White House site.

UPDATE:  Here is Bush's speech, and the associated press briefing.  A highlight - the Administration will not discuss sources and methods, the point of the Presidnt's anecdote was the importanc eof international cooperation, and no connection to the NSA program is meant to be implied.

From the speech:

Since September the 11th, the United States and our coalition partners have disrupted a number of serious al Qaeda terrorist plots -- including plots to attack targets inside the United States.  Let me give you an example. In the weeks after September the 11th, while Americans were still recovering from an unprecedented strike on our homeland, al Qaeda was already busy planning its next attack. We now know that in October 2001, Khalid Shaykh Muhammad -- the mastermind of the September the 11th attacks -- had already set in motion a plan to have terrorist operatives hijack an airplane using shoe bombs to breach the cockpit door, and fly the plane into the tallest building on the West Coast.  We believe the intended target was  Liberty [sic] Tower in Los Angeles, California.*

Rather than use Arab hijackers as he had on September the 11th, Khalid Shaykh Muhammad sought out young men from Southeast Asia -- whom he believed would not arouse as much suspicion.  To help carry out this plan, he tapped a terrorist named Hambali, one of the leaders of an al Qaeda affiliated group in Southeast Asia called "J-I."  JI terrorists were responsible for a series of deadly attacks in Southeast Asia, and members of the group had trained with al Qaeda.  Hambali recruited several key operatives who had been training in Afghanistan.  Once the operatives were recruited, they met with Osama bin Laden, and then began preparations for the West Coast attack.

Their plot was derailed in early 2002 when a Southeast Asian nation arrested a key al Qaeda operative.  Subsequent debriefings and other intelligence operations made clear the intended target, and how al Qaeda hoped to execute it.  This critical intelligence helped other allies capture the ringleaders and other known operatives who had been recruited for this plot. The West Coast plot had been thwarted. Our efforts did not end there.  In the summer of 2003, our partners in Southeast Asia conducted another successful manhunt that led to the capture of the terrorist Hambali.

As the West Coast plot shows, in the war on terror we face a relentless and determined enemy that operates in many nations -- so protecting our citizens requires unprecedented cooperation from many nations as well. It took the combined efforts of several countries to break up this plot.  By working together, we took dangerous terrorists off the streets; by working together we stopped a catastrophic attack on our homeland.

From the press briefing, about the NSA role (if any):

Q    I understand that the House Intelligence Committee was briefed yesterday on the NSA wire tapping program, and I understand that at least some of the members present asked either General Hayden or Mr. Gonzales why they couldn't tell more success stories.  So it's interesting to me that news of this is coming out today.  So my follow question is, did the NSA wire taps, did they play any role in any of these arrests that you talked about, and in disrupting this particular plot?

MS. TOWNSEND:  As I said to you, we use all available sources and methods in the intelligence community, but we have to protect them.  So I'm not going to talk about what ones we did or didn't use in this particular case. And I wasn't at the briefing yesterday, so I can't speak directly to that.

Q    So you can't say that this is a direct result, a successful result of that initiative?

MS. TOWNSEND:  I wouldn't say one way or the other.  I wouldn't comment on it.

Q    Hi.  I had essentially the same question related to the NSA.  Is there nothing at all that you can tell us in any regard as to whether the NSA surveillance was at all instrumental?

MS. TOWNSEND:  No, I'm sorry, I can't. It continues to be a very sensitive program.  It's resulted in successes, but I can't relate it in any way one way or another to this particular plot.

Q    As a follow up, because certainly in the light of the hearings going on this week, and the criticism for this surveillance, it would seem that the President talking about a success story such as this sort of skirts the question of the NSA.  Is it wrong for us to put two and two together?

MS. TOWNSEND:  The point -- as I said in my opening statement, the point of the President's speech was to talk about the international cooperation. This was not meant to be a speech about the NSA surveillance program.

QUESTIONS FOR OSAMA: Per the press briefing, there were to be four hijackers using a shoe bomb to break through the cockpit door.  What in the world was their crowd control plan, and why did they not think they would simply have a replay of United Flight 93?

NY Times coverage is here.

Tim Russert Brings It On

Tim Russert steels himself, then goes one-on-one with a college reporter.

A few more warm-up bouts, and maybe he'll invite Arianna her bad self on his show.  I pity the fool!

Congressional Oversight Of The NSA Program

Heather Wilson, (R, NM) has a bold suggestion - how about Congressional oversight of the NSA program?

From the Times:

A House Republican whose subcommittee oversees the National Security Agency broke ranks with the White House on Tuesday and called for a full Congressional inquiry into the Bush administration's domestic eavesdropping program.

The lawmaker, Representative Heather A. Wilson of New Mexico, chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, said in an interview that she had "serious concerns" about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why.

Ms. Wilson, who was a National Security Council aide in the administration of President Bush's father, is the first Republican on either the House's Intelligence Committee or the Senate's to call for a full Congressional investigation into the program, in which the N.S.A. has been eavesdropping without warrants on the international communications of people inside the United States believed to have links with terrorists.

...Ms. Wilson said in the interview Tuesday that she considered the limited Congressional briefings to be "increasingly untenable" because they left most lawmakers knowing little about the program. She said the House Intelligence Committee needed to conduct a "painstaking" review, including not only classified briefings but also access to internal documents and staff interviews with N.S.A. aides and intelligence officials.

Dick Cheney calmly explained to Jim Lehrer that if Congress got too involved, people would die:

Members of Congress "have the right and the responsibility to suggest whatever they want to suggest" about changing wiretap law, Mr. Cheney said. But "we have all the legal authority we need" already, he said, and a public debate over changes in the law could alert Al Qaeda to tactics used by American intelligence officials.

"It's important for us, if we're going to proceed legislatively, to keep in mind there's a price to be paid for that, and it might well in fact do irreparable damage to our capacity to collect information," Mr. Cheney said.

The AP had coverage as well, but they overlook the hostage threat.

UPDATE:  Heather Wilson gets results (and says so!):

WASHINGTON - After weeks of insisting it would not reveal details of its eavesdropping without warrants, the White House reversed course Wednesday and provided a House committee with highly classified information about the operation.

...

"I think we've had a tremendous impact today," Wilson said at a news conference as Attorney General Alberto Gonzales and Gen. Michael Hayden, the nation's No. 2 intelligence official, briefed the full Intelligence Committee.

"I don't think the White House would have made the decision that it did had I not stood up and said, 'You must brief the Intelligence Committee,'" said Wilson, a U.S. Air Force veteran.

...

At least one Democrat left the four-hour House Intelligence Committee session saying he had a better understanding of legal and operational aspects of the anti-terrorist surveillance program, being conducted without warrants. But he said he still had a number of questions.

"It's a different program than I was beginning to let myself believe," said Alabama Rep. Bud Cramer, the senior Democrat on the Intelligence Committee's oversight subcommittee.

"This may be a valuable program," Cramer said, adding that he didn't know if it was legal. "My direction of thinking was changed tremendously."

Still, Cramer said, some members remain angry and frustrated, and he didn't know why the White House waited so long to inform Congress of its actions.

I'm delighted to be informed that the direction of Bud Cramer's thinking has changed.  Now I wish I could find some hint as to the old direction.

MORE:  Cheney's threat materializes:

Nerve agent alarm clears Senate office building

Leadership That's Shirking

Adam Nagourney of the Times pleads with Dem leaders to give his readership some hope, or to show a sign of life, or even a brainwave:

Democrats are heading into this year's elections in a position weaker than they had hoped for, party leaders say, stirring concern that they are letting pass an opportunity to exploit what they see as widespread Republican vulnerabilities.

In interviews, senior Democrats said they were optimistic about significant gains in Congressional elections this fall, calling this the best political environment they have faced since President Bush took office.

...

Asked to describe the health of the Democratic Party, Senator Christopher J. Dodd of Connecticut, the former chairman of the Democratic National Committee, said: "A lot worse than it should be. This has not been a very good two months."

"We seem to be losing our voice when it comes to the basic things people worry about," Mr. Dodd said.

Democrats said they had not yet figured out how to counter the White House's long assault on their national security credentials. And they said their opportunities to break through to voters with a coherent message on domestic and foreign policy — should they settle on one — were restricted by the lack of an established, nationally known leader to carry their message this fall.

This article is an extended comedy classic, but here are some highlights.

John Kerry performing "Any Day Now":

Mr. Kerry said the party's authority had been diluted because of the absence of one or two obvious leaders, though he expressed confidence that would change.

"We are fighting to find a voice under difficult circumstances, and I'm confident, over the next few months, you are going to see that happen," Mr. Kerry said in an interview. "Our megaphone is just not as large as their megaphone, and we have a harder time getting that message out, even when people are on the same page."

Tall John, in a slightly different context I would advise you that it is not the size of the megaphone, it is the energy with which you employ it.

Let's hear from another hero:

Some Democrats argued that the party had time to put up its ideas, and that it would be smarter to wait until later, when voters would be paying attention.

"When you bring it out early, you are going to leave it open for the spinmeisters in Rove's machine, the Republican side, to tear it to pieces," said Senator Richard J. Durbin, Democrat of Illinois.

His point is what?  That if the Dems have to debate their ideas (after they figure out what they are), it will be a disaster? You can run, but you can't hide the lack of substance.

Nancy Pelosi is calm and wise, in her own special way:

...Mr. Bayh said, "I don't believe we will win by just not being them."

Ms. Pelosi of California, the House Democratic leader, did not dispute that argument. But, pointing to the Democratic strategy in defeating Mr. Bush's Social Security proposal last year, she said there was no rush.

"People said, 'You can't beat something with nothing,' " she said, arguing that the Democrats had in fact accomplished precisely that this year. "I feel very confident about where we are."

Maybe you can plan to beat something with nothing, but Nancy, Rove has shown he can beat you like a drum.

Barbara Boxer closes on what might be a note of hope:

And Senator Barbara Boxer, also a California Democrat, said: "We have a strategy. First is to convince the American people that what's happening in Washington is not working. We have achieved that. Now we have to, at this stage, convince people that we are the ones to bring positive change."

Well.  If she wants her party to take credit for making Washington ungovernable, Godspeed.

Filed Under "Ya Think?"

From the always-insightful, never inciteful Times:

West Beginning to See Islamic Protests as Sign of Deep Gulf

Do tell:

As Islamic protests grew against the publication of cartoons lampooning the Prophet Muhammad, a small but vocal Muslim immigrant organization responded with a drawing on its Web site of Hitler in bed with Anne Frank. "Write this one in your diary, Anne," Hitler was shown as saying.

The intent, said the group, the Arab European League, was "to use our right to artistic expression," just as the Danish newspaper Jyllands-Posten did last September when it published 12 cartoons showing Muhammad, several of them satiric.

...After days of violent protests that have claimed several lives, the conflict has pushed both sides across an unexpected threshold, where they view each other with miscomprehension and suspicion.

The Times floods the zone with another story in the Arts section:

They're callous and feeble cartoons, cooked up as a provocation by a conservative newspaper exploiting the general Muslim prohibition on images of the Prophet Muhammad to score cheap points about freedom of expression.

But drawings are drawings, so a question arises. Have any modern works of art provoked as much chaos and violence as the Danish caricatures that first ran in September in the newspaper Jyllands-Posten?

That's an interesting question, which is not really answered in the article.  Well, let's take that as a "No".

And in late news, Bush addresses this:

President Bush called on governments around the world to halt the violence that has followed the publication of cartoons of the Prophet Muhammad in Europe, as four more protesters were killed in Afghanistan.

The deaths, which took place when Afghan police fired into a crowd marching on an American military base, brought the total of people killed in protests in Afghanistan in recent days to 12.

Speaking to reporters after meeting with Jordan's King Abdullah, Mr. Bush said that the United States believes in acceptance of all faiths and in freedom of the press, but that "with freedom comes the responsibility to be thoughtful about others."

"We reject violence as a way to express discontent over what is printed in the free press," he said, and called on governments "to stop the violence, to be respectful, to protect property and to protect the lives of innocent diplomats who are serving their countries overseas."

Here is the White House link.

John Dickerson Speaks! (Where Is Cliff May?)

John Dickerson, one of Matt Cooper's less well known co-authors on the article that made Matt a near-household name, steps forward with his story.  Mr. Dickerson came to people's attention last week when he received an unexpected mention in some correspondence from Special Counsel Fitzgerald to Libby's defense team.  Let's repeat that to build suspense:

"We also advise you that we understand that reporter John Dickerson of Time magazine discussed the trip by Mr. Wilson with government officials at some time on July 11 or after, subsequent to Mr. Cooper learning about Mr. Wilson’s wife," Fitzgerald writes. "Any conversations involving Mr. Dickerson likely took place in Africa and occurred after July 11."

We eagerly awaited an account from Mr. Dickerson of his interaction with the FBI investigation; our curiosity was especially piqued by his non-denial to Raw Story:

“I didn't know I was mentioned in the court filings until I saw it on the web,” he said. “I've never been contacted by anyone in Fitzgerald's office.”

Ahh!  Since Fitzgerald's office was not established until Dec 30, 2003, this left open the possibility that Mr. Dickerson chatted with the FBI in the fall of 2003.

And now he has stepped forward with his story on Slate.  Intrigue, secret meetings, glamorous locales, hard-boiled interrogations - it might all be here!

Or not - Mr. Dickerson *seems* to be telling us that he has not had contact with the FBI at any point:

After the special counsel went after Matt so enthusiastically, the arrival of men in trench coats asking what I knew seemed imminent. But I never got to try out any of my Dashiell Hammett lines on them. When my other former Time colleague Viveca Novak got tangled in Fitzgerald's hunt last year, I thought, OK, they're coming now for sure. Nope. No Fitzgerald; no FBI; no nothing.

However that passage does not exclude the time period prior to the creation of the special counsel.  Oh, well - if he does not want to tell us, waddya gonna do?

Mr. Dickerson does provide an interesting hint about sources - Mr. Dickerson was on the President's trip to Africa, and Condi Rice, Colin Powell, and Ari Fleischer are the only three senior Administration official named in the article as accompanying them on the trip.  Two different senior Admin officials exhorted Mr. Dickerson to look into who it was that sent Wilson on his trip to Niger, but neither mentioned Valerie Plame.

From that short list, it has to be Condi Rice and Ari Fleischer, who teamed up to make the "Look at Wilson" point in late this July 11, 2003 press gaggle:

DR. RICE:  The IAEA reported it I believe in March.  But I will tell you that, for instance, on Ambassador Wilson's going out to Niger, I learned of that when I was sitting on whatever TV show it was, because that mission was not known to anybody in the White House.  And you should ask the Agency at what level it was known in the Agency.

Dr. Rice was speaking there, yet Mr. Dickerson wrote this last fall:

More astonishingly, we learn from the Fitzgerald indictment that Ari Fleischer knew about Plame and didn't tell anyone at all. He walked reporters, including me, up to the fact, suggesting they look into who sent Wilson, but never used her name or talked about her position.

Pretty easy to believe that Ari Fleischer was one of Mr. Dickerson's sources.

OK, did anyone with the investigation ever contact Mr. Dickerson?  One last hint is here:

Where did Fitzgerald learn about my activities? Matt told me he briefly mentioned me in front of the grand jury and Viveca Novak said my name came up in passing when she talked to Fitzgerald. He also subpoenaed White House e-mail records that included, White House officials tell me, e-mails I sent to them about the Wilson business in the days and months after that July trip to Africa. Those officials also told Fitzgerald and his grand jury about conversations we had.

Well.  If Fitzgerald's tip came from Matt Cooper, then Mr. Dickerson's denial is conclusive.

On the other hand, one might presume that Ari Fleischer, Condi Rice, or both are the officials mentioned in the last sentence:

Those officials also told Fitzgerald and his grand jury about conversations we had.

So think about this - assuming that Ari Fleischer is one of the two senior Administration officials, then Ari Fleischer told Fitzgerald that he had discussed the background of the Wilson trip with John Dickerson, but had *not* leaked info about Valerie Plame.  And Fitzgerald did not even attempt to verify that with Mr. Dickerson.  That certainly speaks well of Mr. Fleischer's ability to convince people (a useful knack for a press secretary), and it explains Fitzgerald's "abundance of caution", but it leaves us wondering about how this investigation was handled.

Now, the alternative theories might be, the two officials with whom Mr. Dickerson spoke are Powell and Rice.  Powell?  C'mon.  Or maybe there is an unnamed senior Admin official hiding in this story.  Possible.  But Ari Fleischer was at the July 11 press conference putting out the story on which Mr. Dickerson was following up.

Mr. Dickerson adds this:

I came back from the trip harboring a suspicion that only fully made sense when I learned Plame's CIA cover had been blown. It seemed obvious that the people pushing me to look into who sent Wilson knew exactly the answer I'd find. Yet they were really careful not to let the information slip, which suggested that they knew at the time Plame's identity was radioactive.

Hmm.  That might explain Tim Russert's "wow".

MORE:  Re-emphasizing the obvious - if Ari Fleischer had leaked to Pincus or Novak, do you think Fitzgerald would have let the Dickerson piece slide?  I don't, either.

UPDATE:  Tear out the front page!  Per ReddHedd at firedoglake, now that Fitzgerald the Omniscient Master is armed with this new info from Mr. Dickerson (which Fitzgerald the OM overlooked for two years), the full conspiracy will be unmasked.  At Last!  It must be great to live in a world without contradictions. 

Meanwhile, in my world, Fitzgerald ignored this for two years because he didn't care, not because he is an idiot.  And the sun is yellow. it's the glasses that are rose-colored. 

[And a final guess - Fitzgerald got consistent stories from Cooper, Fleischer, and someone (Rice?) about what Dickerson knew and didn't know, so he quite reasonably gave him a pass.  However, in "an abundance of caution" he noted his own ignorance in his correspondence with Libby's attorneys.  And well he might be cautious - here is what he wrote (Exhibit C):

...we were not aware of any reporters who knew prior to July 14, 2003, that Valerie Plame, Ambass. Wilson's wife, worked at the CIA, other than: Bob Woodward, Judith Miller, Bob Novak, Walter Pincus and Matthew Cooper."

Well, since Cooper told Dickerson, I guess we can add him to that list - reporter to reporter communication ought to count, even if Fitzgerald did not pursue it.  And, one wonders, didn't Cooper mention to Fitzgerald that he told Dickerson?  Guess not.]

FWIW:  On the off chance that evidence matters, here is Andrea Mitchell on July 8, 2003, citing CIA sources for the news that "low-level CIA operatives" planned the Wilson trip.  Gee, that was three days before Dickerson got that beaten into him by "Senior Administration officials".  And Reuters had a similar leak (involving mid-level CIA folks), also on July 8.

Andrea Mitchell:

MITCHELL: Well, people at the CIA say that it's not going to be George Tenet; and, in fact, that high-level people at the CIA did not really know that it was false, never even looked at Joe Wilson's verbal report or notes from that report, didn't even know that it was he who had made this report, because he was sent over by some of the covert operatives in the CIA at a very low level, not, in fact, tasked by the vice president.

Reuters:

A U.S. intelligence official said [Joseph] Wilson was sent to investigate the Niger reports by mid-level CIA officers, not by top-level Bush administration officials. There is no record of his report being flagged to top level officials, the intelligence official said.

"He is placing far greater significance on his visit than anyone in the U.S. government at the time it was made," the official said, referring to Wilson's New York Times article.

Well, at the time (July 8, 2003) Josh Marshall was imploring reporters to poke into this.  So the White House conspired to respond to press inquiries?  Cool.  Someone tell Fitzgerald.

FINALLY:  Was it over when the Germans bombed Pearl Harbor?  Well, this won't be over until we hear from Cliff May!