JustOneMinute

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?