"This was the voice of moderation until 13 Sept, 2025"
by hilzoy But it would have been better still if Matthew Dowd had figured this out earlier: “In 1999, Matthew Dowd became a symbol of George W. Bush’s early success at positioning himself as a Republican with Democratic appeal. A top strategist for the Texas Democrats who was disappointed by the Bill Clinton years, Mr. … Read more
by hilzoy I had barely begun to assimilate the news that some sort of contagious amnesia seems to have swept through the upper echelons of the Justice Department when news of another DC-based mental disorder appeared: paranoid hallucinations among the Beltway media. Exhibit A: Chris Matthews: “You know, somewhere out in the Atlantic Ocean, I … Read more
by hilzoy Robert Novak wrote this in today’s Washington Post: “Following the example set by their Senate brethren last Friday, House Democrats will adopt a budget resolution containing the largest tax increase in U.S. history amid massive national inattention. Nobody’s tax payment will increase immediately, but the budget resolutions set a pattern for years ahead. … Read more
by publius TPM Muckraker posted the YouTube clip below, which is an excerpt of testimony from GSA Chief Lurita Doan. Everyone should really watch the whole thing. It’s just mind-boggling. The act itself of turning GSA (the federal procurement agency in charge of making various purchases on behalf of the government) into a giant slush … Read more
by Sebastian Earmarks Revisited and Changes to the Congressional Research Service For more than a decade, the Congressional Research Service (CRS) has provided data to Congress, reporters and the general public on various public policy issues (it is the research division of the library of Congress). Two serious changes in policy seem to have taken … Read more
by hilzoy
As everyone undoubtedly knows, Monica Goodling has decided to take the fifth rather than testify before Congress:
“Attorney General Alberto R. Gonzales’s senior counselor yesterday refused to testify in the Senate about her involvement in the firings of eight U.S. attorneys, invoking her Fifth Amendment right against self-incrimination.
Monica M. Goodling, who has taken an indefinite leave of absence, said in a sworn affidavit to the Senate Judiciary Committee that she will “decline to answer any and all questions” about the firings because she faces “a perilous environment in which to testify.” (…)
Goodling contended in her affidavit yesterday that Leahy and other lawmakers, including Sen. Charles E. Schumer (D-N.Y.) and Rep. Linda T. Sanchez (D-Calif.), had already “drawn conclusions” about the prosecutors’ firings.
Dowd said the “hostile and questionable environment in the present Congressional proceedings is at best ambiguous; more accurately, the environment can be described as legally perilous for Ms. Goodling.””
The full letter from Ms. Goodling’s lawyer, with her affidavit, is here (pdf). As lots of people have pointed out, the Fifth Amendment says that no person “shall be compelled in any criminal case to be a witness against himself”; and this means that while Goodling clearly has the right to take the fifth if she believes that her testimony might incriminate her, it does not mean that that she can decline to testify just because she thinks her questioners might be biassed or mean. I like Sandy Levinson’s way of making this point:
“What is the precise nature of the ostensible “constitutional right” that she is invoking on the advice of counsel? Can we now explain to the IRS that we are not sending in our tax return this year because, given Al Capone and other examples, we just don’t trust the IRS to play fair with people it views as public enemies (and, in the age of the Bush-Cheney Administration, that could be a very broad category indeed)? If not, why not? Or is there some special principal–call it the “non-oversight one”–that applies especially to Congress? And, by the way, does it apply only to officials of the Executive Branch, or can any private citizen invoke the “I really don’t like you people and therefore I’m taking the 5th” defense? It would, of course, be entirely different if she were forthrightly willing to say “I’m not sure that everything I did was really legal and therefore I’m going to be prudent and refuse to talk about any of it,” which is certainly an inference one can draw from most persons’ invocation of the Fifth Amendment. “
Dan Froomkin also makes a good point about Goodling’s lawyer’s letter:
“And he cites “numerous examples of witnesses who gave testimony before Congress and then faced criminal investigations and even indictments for perjury, false statements, or obstruction of congressional proceedings, including United States v. Poindexter, United States v. North, United States v. Safavian, and United States v. Weissman. . . .
“[T]he potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real. One need look no further than the recent circumstances and proceedings involving Scooter Libby.”
But here’s one thing all those people had in common: They lied.”
Christy at Firedoglake has some interesting background on Goodling’s lawyer, which leads her to conclude that “Ms. Goodling either has a nice cash stash, that someone else is footing her legal bills, or that Mr. Dowd is an old family friend, because a man with this background does not come cheaply to the negotiation table”. Here’s a decent profile of Ms. Goodling, and here’s an article about the law school she has her degree from. (It was founded by Pat Robertson.)
So what, I asked myself, can I bring to the table, now that everyone else has said such illuminating and insightful things? Well: I thought of one admittedly tiny thing.
by publius
Like Hilzoy and Josh Marshall, I think it’s important to address the “so what?” question in the ever-expanding U.S. Attorney scandal. And while I heartily endorse their excellent posts, I’d like to take a step back and put the scandal into an even broader context than they do. In particular, I think the scandal is an indictment of far more than the Bush administration alone, but instead extends to large chunks of modern conservative ideology as well. In this sense, limiting the critique to DOJ or Rove or even to the “rule of law” misses the forest for the trees.
If my critique of the Bush administration could be expressed in a single sentence, it would be this — they ignore and attack restraints on their power. This is the foundational conceptual thread that binds together so many of the scandals and controversies we’ve seen over the past few years. International law constraining your actions? Ignore it. War crimes statute limiting your interrogation methods? Ignore it (then delete it). Don’t like part of a congressionally-enacted statute? Issue a signing statement and ignore it. Pesky FISA cramping your style? Declare it unconstitutional. Geneva Convention got you down? Call it quaint. Is your habeas flaring up again? Delete it. Having problems with a special prosecutor? Lie to him. Are certain Democrats political threats? Prosecute them, or suppress their political base through fraud investigations or through not enforcing the Voting Rights Act. And if U.S. Attorneys refuse to go along? Fire them.
I could go on, but you get the point. And many similar critiques could be leveled against the Republican Party more generally on everything from Bush v. Gore, to the Texas redistricting, to the Medicare Rx bill vote, to the New Hampshire phone-jamming scandal, to the nuclear option, etc.
Note that these problems go beyond ignoring the rule of law. The rule of law is one type of restraint, but it’s not the only one. Deleting habeas, for instance, isn’t really ignoring the rule of law (like, say, the NSA scandal), it’s changing the law to maximize executive power. Again, the common theme here is ignoring or attacking that which prevents you from doing what you want to do. It’s almost like watching small children – they see something they want, and they try to get it without worrying about legal or procedural constraints.
Ok, fine you say — but so what? Why should we care? It’s not obvious, after all, that we should. Maybe ignoring the law is a net positive (from a utility perspective) in our bold new post-9/11 world.
by hilzoy
Josh Marshall has another very interesting story up tonight. It concerns Mitchell Wade, a defense contractor who pled guilty to bribing Duke Cunningham about a year ago. To set the scene, recall this timeline:
1993: Mitchell Wade incorporates MZM Inc.
1993-2001: MZM reports no revenue from any government contract, or, for that matter, from anywhere else.
November 2001: MZM begins buying things for Duke Cunningham:
“In November 2001, a company check for $12,000 paid for three nightstands, a leaded-glass cabinet, an antique washstand and four armoires.
In December 2001, a $50,000 company check was sent to a mortgage banker, who in turn made out a check to Cunningham for the same amount. In January 2002, the company’s American Express card was used to purchase a leather sofa and a sleigh bed for Cunningham.
In all, more than $100,000 in cash and furnishings were given to Cunningham even before MZM had posted its first revenue.”
May 2002: “Although MZM had no experience with government contracts, the General Services Administration in May 2002 placed the company on a list of approved information technology service providers, a key step for the company to get business from federal agencies.”
Summer, 2002: According to Cunningham’s sentencing recommendation:
“In the summer of 2002, through an intermediary, Cunningham approached the seller of a 42 foot Carver yacht then named the ‘Buoy Toy’ (…) and eventually negotiated a price.”
August 2002: “The first contract, worth $140,000, came from the White House — to provide office furniture and computers for Vice President Dick Cheney.”
August 30, 2002, just two weeks later: “Wade purchased a yacht, later christened “Duke-Stir,” for $140,000, according to court documents. Cunningham used the yacht, docked at the Capital Yacht Club, as his home in Washington — and the scene of parties for lobbyists and others.”
Isn’t that interesting? A company that has never had a government contract before, but that has been paying off a powerful Congressman, suddenly lands a contract from the Vice President’s office, and two weeks later the head of that company turns around and buys a yacht for the use of that same Congressman, a yacht that the Congressman had previously negotiated to a price for. And, by an astonishing coincidence, that price was the exact same amount that the contractor’s contract was for. I mean, what are the odds of that?
I’ve always wondered what, exactly, that contract with Cheney’s office was for. Not being an investigative reporter, however, I wasn’t able to find out. Luckily for all of us, the investigative reporter who broke the original Cunningham story did, and apparently he’s written about it in a forthcoming book. Josh Marshall reports what he found:
by hilzoy You all probably read TPM anyways, but in case you missed it, Josh Marshall has two really good posts up tonight. The first one, which I’m just going to encourage everyone to read, is here. The second is an attempt to answer the question: what’s the big deal with the US Attorneys scandal? … Read more
by hilzoy Scott Eric Kaufman has been hurting his students with his words: “Every day I wanted to discuss with you about the way you grade my papers and the way you teach the class, but I could not because the things you say in class and your words disturb me so much I can … Read more
by hilzoy
(1) Did George Will really, truly mean to equate Paul Krugman and Ann Coulter? It sure sounds like it:
“There are the tantrums — sometimes both theatrical and perfunctory — of talking heads on television or commentators writing in vitriol (Paul Krugman’s incessant contempt, Ann Coulter’s equally constant loathing).”
I can’t wait to see what Krugman quotes Will thinks are even remotely comparable to such highlights of the Coulter oeuvre as: “”My only regret with Timothy McVeigh is he did not go to the New York Times Building”, or “We need somebody to put rat poisoning in Justice Stevens’ creme brulee.”
Besides, Paul Krugman is a very, very good economist. As far as I can tell, his attitude towards the Bush administration comes mostly from the fact that they have been systematically mendacious about an area of policy he knows an awful lot about; and the fact that he was angry earlier than most people just reflects the fact that he, unlike a lot of commenters, actually knows a major area of policy well enough to know when people are lying about it. The day Ann Coulter wins the second most prestigious prize in economics (after the Nobel), or any remotely comparable academic award*, I will personally post a video of myself singing a Kyrgyz translation of Bob Dylan’s “Leopard-Skin Pillbox Hat” while wearing a tutu and standing on my head.
I do not own a tutu. Heck, I don’t even own a video recorder. I can’t think, offhand, how I would get “Leopard-Skin Pillbox Hat” translated into Kyrgyz. Yet somehow I’m not too worried. A miracle of composure in the face of danger: that’s me.
(2) Via David Kurtz, writing at TPM, the Las Vegas Sun has the US Attorney scandal quote of the day:
“On Dec. 7, having just returned from Washington, D.C., Bogden took a call of a different kind from Mike Battle, director of the executive office for U.S. attorneys at the Justice Department.
Bogden recalled the conversation Friday: “He says, ‘Dan, it’s time to step down. They want to go in another direction.’
“I say, ‘Well, what direction is that?’
“He says, ‘Dan, I don’t know.’ “
Bogden was blown away.”
“Dan, I don’t know.” Gotta love it.
The LA Times (via Kevin Drum) has another article on Bogden’s firing, and the Washington Post has one on Margaret Chiara. Neither can figure out what they were fired for.
(3) And now for something completely different: the journal Current Biology has an article called ‘Metacognition in the Rat’, arguing that rats are capable of metacognition — the ability to know stuff about what you know. Here’s the abstract:
” Here, we demonstrate for the first time that rats are capable of metacognition — i.e., they know when they do not know the answer in a duration-discrimination test. Before taking the duration test, rats were given the opportunity to decline the test. On other trials, they were not given the option to decline the test. Accurate performance on the duration test yielded a large reward, whereas inaccurate performance resulted in no reward. Declining a test yielded a small but guaranteed reward. If rats possess knowledge regarding whether they know the answer to the test, they would be expected to decline most frequently on difficult tests and show lowest accuracy on difficult tests that cannot be declined. Our data provide evidence for both predictions and suggest that a nonprimate has knowledge of its own cognitive state.”
‘Knowing that X’, in this context, means something like: being able to respond differently depending on whether or not X is true. Thus, for instance, pigeons can be trained to tell the difference between photographs with and without trees, or water, or human beings, and even the difference between paintings by Monet and Picasso. (Great sentence from the abstract: “Furthermore, they showed generalization from Monet’s to Cezanne’s and Renoir’s paintings or from Picasso’s to Braque’s and Matisse’s paintings.”) And they’re quite sophisticated about it:
“Walcott recalls a study by Richard Hernstein at Harvard. The pigeon kept insisting that a slide contained a human face. None of the investigators could see it — just a house with a hedge. “Finally, somebody spotted a small child looking out the hedge!””
In the sense in question, these pigeons know whether or not a picture has a person in it or not, etc. Knowing that you know something, in this sense, just means something like: being able to respond differently depending on whether or not you know something. does not mean anything like: being able to think about this explicitly, still less something like: being able to consider the evidence for X and assess it. Still, metacognition had been thought to be confined to much more complicated animals than rats, so this is quite interesting.
(4) And how are you?
UPDATE: (5) Snark of the Week, If Not the Year: Wolcott on Jonah Goldberg.
by hilzoy
Via Dan Froomkin, here’s an article from the National Journal:
“White House Deputy Chief of Staff Karl Rove may have forfeited potential claims of executive privilege over the dismissals of eight U.S. attorneys — if he communicated about the matter outside the White House e-mail system, using his Republican National Committee e-mail account or RNC equipment. Or at least that’s a legal possibility posed by rapidly advancing electronic technology and the evolving work habits of busy White House officials.”
Actually, while I am not a lawyer, I don’t think this is a particularly good argument: surely what matters for executive privilege claims is whether or not someone is advising the President, not what email system he’s using. [UPDATE: In comments, the clear consensus is that I am wrong.*] The more interesting part comes later:
“According to one former White House official familiar with Rove’s work habits, the president’s top political adviser does “about 95 percent” of his e-mailing using his RNC-based account. Many White House officials, including aides in the Political Affairs Office, use the RNC account as an alternative to their official government e-mail addresses to help keep their official and political duties separate. Although some White House officials use dual sets of electronic devices for that purpose, Rove prefers to use his RNC-provided BlackBerry for convenience, the former official said.
No original e-mails or documents created by Rove have emerged among the more than 3,000 pages of communications offered to Congress in its probe of the attorney firings, although several e-mails from other White House and Justice Department officials containing references to him were among the documents provided. (…)
President Bush pledged this week to “release all White House documents and e-mails involving direct communications with the Justice Department or any other outside person, including members of Congress and their staff, related to this issue.” The president, echoed by White House Counsel Fred Fielding in a March 20 letter to lawmakers, said that any congressional interviews with White House officials or voluntary surrender of e-mails and materials by the president will not disclose communications between or among White House officials. That would eliminate voluntary disclosure of possible e-mail discussions between Rove and Miers, and between Rove and Jennings or other White House aides who frequently use BlackBerry devices and may have conducted official White House business using their RNC e-mail accounts. Bush said on Tuesday that he would go to court, if necessary, to “oppose any attempts to subpoena White House officials.”
If Rove or other White House officials used RNC e-mail to discuss the prosecutor firings or the subsequent controversy — and if their discussions went to e-mail recipients who use the White House servers — their communications are captured and would be considered presidential records owned by the American people for purposes of eventual public disclosure under the Presidential Records Act, by virtue of both subject matter and official position, according to the archives expert.
White House and RNC spokespeople did not respond to National Journal questions about Rove’s use of the RNC e-mail system and the preservation of communications he created on its equipment. The former White House official, speaking on background, said that although the RNC had a policy to purge e-mails after a short period of time, Rove’s e-mails on its system and those of a few other White House aides in sensitive positions were preserved by the RNC “to protect Karl.” Even with a policy of deleting e-mails from servers, information-technology experts say, organizations rarely erase data entirely.”
The law governing presidential records is here. Presidential records include documents “relating to the political activities of the President or members of his staff” that “relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President” (US Code 44:22:2201:2A). The Presidential Records Act requires that they be preserved. The White House has a system for doing that:
“(T)o fulfill its statutory obligations under the PRA, the White House email system automatically copies all messages created by staff and sends them to the White House Office of Records Management for archiving. It appears that the White House deliberately bypassed the automatic archiving function of its own email system that was designed to ensure compliance with the PRA.”
The law does not, as far as I can tell, set out any penalties for not preserving presidential records, presumably because, well, Presidents are supposed to take care that the Laws be faithfully executed, and all that. It is not legal for Rove to use a server whose contents are periodically purged; and speaking as an academic, it’s horrible to think that all that history is being put in jeopardy.
Moreover, as this dKos diary points out, it could also be a serious security risk. Do you think that the US Government has installed all the things it uses to keep White House communications secure on the RNC servers? Would that even be legal? (I hope not: I don’t really want my hard-earned tax dollars going to beef up security on the RNC’s computer network — or the Democrats’ either. That’s not what we pay taxes for.) If the RNC’s communications aren’t secured, however, then Karl Rove has found one more way to compromise national security.
Honestly: I have had more than enough of people in this administration acting as though the rules just don’t apply to them.
by Charles
In my earlier post, I touched on the importance of information operations (IO) in Iraq, noting that it is one of the five main pillars of a successful counterinsurgency (COIN) strategy. In that light, I mentioned the travails of Michael Yon, who is doing important work in reporting what is happening on the ground, yet is being shut down by a petulant general. In the cross-posted thread, Bob Owens from Newsbusters.org showed up and named names:
The General who wants to silence Yon is Brigadier General Vincent K. Brooks. In 2005, Brooks was the the lead Public Affairs Officer (PAO) for the United States Army. The stories that got Yon in trouble with Brooks were Proximity Delays and Gates of Fire. Proximity Delays got Yon in trouble, and in Gates of Fire, Yon picked up a rifle and joined combat to help LTC Erik Kurilla, who had been shot three times by an insurgent while CSM Robert Prosser was engaged in hand-to-hand combat with another insurgent. For inserting himself into battle (which violated embed rules) to help fallen American soldiers, and then having the gall to write about it, Brooks tried to kick Yon our [out] of Iraq.
Brooks is back in Iraq, this time as deputy commanding general – support for Multinational Division-Baghdad, and he still obviously carries his grudge against Yon. I confirmed last night with Michael Yon that it is this same General Vincent K. Brooks that sent Yon the email threatening to kick him out of Iraq.
Following his RUBS post, Yon writes a lengthy entry that merits a full read (Warning: Graphic images).
by hilzoy The Washington Post: “Attorney General Alberto R. Gonzales met with senior aides on Nov. 27 to review a plan to fire a group of U.S. attorneys, according to new documents released last night, a disclosure that contradicts Gonzales’s previous statement that he was not involved in “any discussions” about the dismissals. Justice Department … Read more
by hilzoy
A couple of days ago, I advanced the following explanation for part of the US Attorney purge:
(a) The provision allowing Bush to appoint US Attorneys without Senate confirmation was slipped into the PATRIOT Act to benefit Tim Griffin, who replaced Bud Commins as US Attorney in the Eastern district of Arkansas.
(b) Griffin is normally described as a protégé of Karl Rove, which he is. But his specific area of expertise is opposition research: digging up dirt on one’s political opponents. He was the head of opposition research for the Bush 2004 campaign.
(c) The reason the administration wanted to make Tim Griffin a US Attorney in Arkansas was to send their chief opposition researcher to the state where Hillary Clinton, then the presumptive frontrunner for the Democratic nomination, had spent most of her adult life; and to send him not as a campaign employee but as a US Attorney with subpoena power.
Is this explanation true? I don’t have any evidence of it. I suspect that if it were true, there would not be any evidence. But it makes sense, both because the administration has in fact appointed its chief oppo researcher to the US Attorney’ job in Eastern Arkansas, and because it fits Rove’s modus operandi. (See below.) And if it is, it’s very, very bad.
According to the US Attorneys’ Manual, US Attorneys have all sorts of powers. You can read about the ones related to criminal law here. One of them is, of course, the power to indict and prosecute people. That’s a risky power to abuse, however: when you actually have to present your case, it’s a lot easier for people to see that you don’t have one. The power to investigate doesn’t suffer from these limitations: it’s easy to say that despite your earlier suspicions, you didn’t happen to find enough to prove your case. In the interim, however, your opponent will be under a cloud: s/he’s the object of a Federal Investigation, people will say; where there’s smoke, there’s fire. By the time they discover that the “investigation” didn’t actually go anywhere, the election might be over, and the person whose honor you have dragged through the mud might have lost.
Just think what fun an opposition researcher with subpoena power could have in Arkansas. There are crowds of people who know the Clintons in Arkansas, and any of them could profitably be investigated for fraud or insider trading or — heck, why not? — child molestation or serial murder. It would take a certain amount of ingenuity to come up with just the right investigations — investigations that managed to remind people of Whitewater and Monica and all that without being, well, obvious about it; but that, no doubt, is where the artistic side of an opposition researcher comes into play. And while this sort of thing requires more of a certain kind of deviant brilliance than normal US Attorney work, it’s a lot easier in other respects, since there’s no need for even the slightest bit of evidence that the person you propose to investigate and smear is actually guilty of anything.
I can’t tell you how angry the thought of someone doing this makes me. It was wrong when Hoover kept files on his opponents. It was wrong when Nixon launched IRS audits of people he decided were his “enemies”. Any time the law enforcement powers of the state are used for political purposes, it’s wrong, wrong, wrong.
Naturally, this wrong thing turns out to be one of Karl Rove’s favored tactics…
by hilzoy From the Washington Post: “The House of Representatives today passed a $124 billion emergency spending bill that sets binding benchmarks for progress in Iraq, establishes tough readiness standards for deploying U.S. troops abroad and requires the withdrawal of American combat forces from Iraq by the end of August 2008. The bill promptly drew … Read more
by von (of course) I WAS QUITE flattered to be asked to provide a profile for Norman Geras, who has profiled a good chunk of the blogosphere at Normblog. Geras is one of the better bloggers around, and his site is well worth a visit. In any event, the profile is here if you’re interested.
by hilzoy
Apparently, the Democratic House leadership has finally got the votes to pass the Iraq supplemental bill, which appropriates money to continue the Iraq war subject to certain restrictions*, and requires the withdrawal of all troops by September 2008. Republicans oppose it, as do some liberal House members, who oppose any bill that appropriates money for the war. Others have come round, and concluded that voting for a bill with a clean deadline for withdrawal beats opposing it.
I wholeheartedly support this bill. It took me a while to conclude that the situation in Iraq was hopeless. I thought (and think) that we have a serious responsibility to the Iraqi people, and I wanted us to live up to it, and I hoped against hope that the competence of the military would somehow prevail against the incompetence of the administration. Eventually, though, even I had to give up, and ever since I have wanted us to get out, possibly leaving some force over the horizon. I realize that we can’t just withdraw in a headlong, disorganized way; that moving this many troops, while keeping those who are still there safe, is a complicated logistical undertaking, and takes time. Fine. But I’d rather it be done as soon as possible.
The Democrats are in a miserable position. Thanks to Bush’s inept prosecution of the war, there are, basically, no good options at all. And if they try to do anything at all, they will probably get blamed for whatever happens next — and whatever happens next will undoubtedly be awful. Moreover, any attempt to use the “power of the purse”, which we are forever being told is our only option, would open us to the charge of cutting off the troops. If Democrats cared only about political astuteness and not at all about either our country’s interests or about Iraq, then the thing to do would clearly be to make some gesture that makes it seem as though they’re trying, but that is doomed to failure. That way everything is still Bush’s fault.
There are things that fit this description a lot more clearly than what the Democrats are actually doing. Bush would veto any bill that sets a deadline for Iraq, so that’s a given. But if the Democrats passed a straightforward bill that says: we must be out by September 2008 (or whenever), then Bush could veto it with impunity. By attaching these conditions to an appropriations bill, they’re making it more likely that they will, in fact, succeed. One way or another, an appropriations bill has to pass. If it doesn’t, the Iraq war will simply run out of money. And if Bush vetoes it, he’ll have to be counting on some members of Congress to back down from their position. I’m not sure I’d take that bet, in his position. He seems to me to have infuriated the Congress over the US Attorneys issue, and while normally I wouldn’t expect Congress to stick to its guns, there is, I think, a decent chance that they might.
In any case, this should be interesting. I wish it weren’t: I wish we were not in Iraq at all, and could have nice dull debates about water rights. In politics, boring is good. But we’re not living in boring times.
***
*I’ve pasted the restrictions in the bill below the fold. It took me a while to find them, so I thought I’d spare everyone else the trouble. Plus, I thought OCSteve might want to see the actual restrictions on deployments.
by hilzoy
It occurred to me that it might be useful for me to try to sort out what, exactly, executive privilege is. As always, I have tried to get it right, but welcome correction from any lawyers who read this.
by hilzoy
Kevin Drum reminds us that the eight US Attorneys who were fired are, in fact, eight separate cases, and that the reasons behind their firings might be quite different. This is clearly right, and it’s important to think of them individually. With that in mind, one of the things I want to know is: why was the provision that the Attorney General could replace US Attorneys without Senate confirmation slipped into the Patriot Act? Was this just a power grab for its own sake, or was there some particular person whom the administration wanted to appoint, and whom they did not want to have to seek Senate confirmation for?
If there was a particular person they had in mind, the obvious candidate is Tim Griffin, the protege of Karl Rove who replaced the US Attorney in the Eastern District of Arkansas. For the most part, the list of US Attorneys to be fired seems to have been in flux throughout the summer and fall of 2006: there are people who were fired who only appear late in the game, and there are people on various lists whose names were redacted, presumably because they were not fired. A few — e.g., Carol Lam — are on the list throughout.
But the US Attorney in the Eastern district of Arkansas is unique. The various people who wrote the DoJ emails and memos just assumed that Bud Cummins, the USAttorney who held that job in early 2006, would be asked to resign. This was never in question. More importantly, this is the only case in which they seem to have known from the outset who would replace him: Tim Griffin. (Griffin seems to have regarded this as a done deal before Cummins announced his retirement.) It was Griffin of whom Kyle Sampson wrote: “getting him appointed was important to Harriet, Karl, etc.” Moreover:
“On February 6, [Deputy Attorney General Paul] McNulty acknowledged during contentious testimony before the Senate Judiciary Committee that Cummins had been fired because the administration wanted to name Timothy Griffin, a former aide to presidential adviser Karl Rove, who had also worked for the Republican National Committee. But McNulty said the firings of the other prosecutors were related to their poor performance.
During the hearings, Democratic Sen. Chuck Schumer of New York posed the following question to McNulty: “First, Bud Cummins has said that he was told he had done nothing wrong and he was simply being asked to resign to let someone else have the job. Does he have it right?”
McNulty: “I’ll accept that as being accurate, as best I know the facts.””
It’s pretty clear that Cummins’ firing is unique in that it was motivated by a desire to give someone else a job, and that that someone was Tim Griffin. That means, I think, that if the provision allowing the AG to name replacements for US Attorneys was slipped into the Patriot Act because the administration wanted to appoint someone in particular to be a US Attorney, that someone was probably Tim Griffin. But why would it be so important to get him that job? And why might they have wanted to avoid Senate confirmation?
I suspect that the answer to the latter question is not: because he might not have been confirmed. (Not entirely, anyways.) The provision allowing the AG to bypass Senate confirmation was slipped into the Patriot Act in December of 2005. At that time, I don’t recall anyone thinking that the Republicans were going to lose control of the Senate — the fact that they did turned on such later events as George Allen’s macaca moment. I think it was the entire confirmation process that they wanted to avoid: the public questioning, the spotlight, possibly the need to give sworn testimony.
And why would the administration have wanted to avoid that? Well, consider who Tim Griffin is:
“A quick perusal of Griffin’s resume shows that his more-or-less exclusive vocation has been doing opposition research on Democrats on behalf of the Republican Party. Until recently, he was head of oppo research at the White House, working directly for Karl Rove. In 1999 and 2000, he was deputy research director for the Republican National Committee. In 2002 he returned as research director for the national GOP and stayed on for the next three years.
Before getting involved formally in oppo research he worked in what you might call de facto oppo research positions. In 1995 and 1996 he was associate independent counsel in the Henry Cisneros investigation. And after that he headed up to the Hill to work for Rep. Dan Burton (R-Ind.) investigating political contributions from Asian-Americans to Bill Clinton.
Oh, and I forgot to mention, according to Time, back in 2000, when he was in charge of digging up dirt on Al Gore, he apparently had a poster hanging on the wall behind his desk which read: “On my command — unleash hell on Al.””
Opposition research is not a pleasant business, and might involve all sorts of things one would rather not discuss in public, under oath. For instance, this delightful episode:
“The Griffin scheme was sickly brilliant. We learned that the RNC sent first-class letters to new voters in minority precincts marked, “Do not forward.” Several sheets contained nothing but soldiers, other sheets, homeless shelters. Targets included the Jacksonville Naval Air Station in Florida and that city’s State Street Rescue Mission. Another target, Edward Waters College, a school for African-Americans.
If these voters were not currently at their home voting address, they were tagged as “suspect” and their registration wiped out or their ballot challenged and not counted. Of course, these ‘cages’ captured thousands of students, the homeless and those in the military though they are legitimate voters.
We telephoned those on the hit list, including one Randall Prausa. His wife admitted he wasn’t living at his voting address: Randall was a soldier shipped overseas.
Randall and other soldiers like him who sent in absentee ballots, when challenged, would lose their vote. And they wouldn’t even know it.”
(More on this here and here — apparently, Sen. Pryor of Arkansas was concerned about the ‘caging’ issue.)
More generally, though, I find it useful to think about the administration’s appointment of Griffin this way. It’s not surprising, at the beginning of a Presidential campaign season, for the Republican party to send its chief opposition researcher — the guy responsible for digging up dirt on political opponents — to the very state where Hillary Clinton, one of the frontrunners for the Democratic nomination, spent most of her adult life. But it’s completely out of line for them to send their chief opposition researcher to Arkansas as a US Attorney with subpoena power. Before I voted to confirm him, under the circumstances, I would want to be very sure that he had given up on opposition research, and on partisan political activity generally, and had decided to devote himself to prosecuting bad guys without fear or favor. If I was in any doubt, I would not vote to confirm. The line between political opposition research and federal prosecution ought to remain absolute.
***
Kevin also points us to this article in the LA Times:
by von UNABLE TO GET even fifty votes to pass its anti-Iraq war bill through the Democratically-controlled Senate, the Democratically-controlled House has been holding a firesale of pork. (Mmmmm, roast pork.) Whether you are pro- or con- on the bill itself, this should rankle*: Last January, as soon as Democrats took control of Congress, the … Read more
by hilzoy AP: “Democratic presidential candidate John Edwards accompanied his wife, Elizabeth, who has been treated for breast cancer, on a doctor’s visit Wednesday. His campaign said they would hold a news conference in their hometown Thursday to discuss her health. Campaign officials refused to answer any questions about what the Edwardses learned at the … Read more
by hilzoy Executive branch version: “A House committee released documents Monday that showed hundreds of instances in which a White House official who was previously an oil industry lobbyist edited government climate reports to play up uncertainty of a human role in global warming or play down evidence of such a role. In a hearing … Read more
by hilzoy I have now skimmed more of the recently released DoJ documents than I’d care to admit to, and they are a puzzling lot. Boring, for one thing: there are approximately a million trillion versions of the Talking Points on US Attorneys, Paul McNulty’s testimony, a compilation of relevant editorials, etc. I suspect that … Read more
by publius
Mark Cuban’s prophecies came true last week as Viacom sued YouTube (Google) for a cool billion for copyright infringement. In response, some smart people like Lessig and Harold Feld (of Public Knowledge) are blaming the Viacom suit in part on the Supreme Court’s Grokster decision. I generally agree with that argument, but for somewhat different reasons. As I explained when Grokster came down, the case is a classic example of what happens when legal decisions become divorced from real world considerations.
First, some background. Prior to Grokster, the seminal Supreme Court case was Sony v. Universal City Studios (1984), which addressed Sony’s potential copyright liability for its newfangled VCR. Like Grokster, Sony involved the issue of secondary liability. Because the “primary” infringers were VCR users taping Miami Vice and Knots Landing, the issue was whether Sony could be “secondarily” liable for distributing the technology ultimately used for infringement. The Court said no, reasoning that the VCR was “capable of commercially significant noninfringing uses.” In other words, you could use it for good reasons too. Thanks to this decision, we have the video rental market.
Fast forward to 2005. As any sentient being would concede, Grokster was facilitating and promoting massive copyright infringement. The problem, though, was what to do about it (i.e, the concern was the remedy not the right). The challenge federal courts faced was to find a way to extend liability to Grokster without extending it to, say, Microsoft’s operating system (or Intel’s microprocessor). After all, many types of technologies – Grokster, Windows, a Dell notebook, Google’s search engine – can be used for both “infringing” and “noninfringing” purposes. It may sound absurd to hold Microsoft liable in copyright infringement for illegal file sharing, but I’d encourage you to try to come up with a clear legal test that reaches the Grokster software while simultaneously not reaching Windows XP.
The lower courts didn’t even try. Applying a strong version of Sony, the Ninth Circuit simply ruled that, because Grokster had valid noninfringing uses, it could not be secondarily liable under Sony. In Grokster, the Court – motivated by understandable animus towards Grokster – unanimously reversed. To thread the tricky needle that the lower courts avoided, Justice Souter tried the following language:
We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. (emphasis added)
The italicized phrase is key. What Souter is trying to do here is to limit liability to parties, like Grokster, that openly and brazenly promote infringement while shielding more neutral hardware and software technology. The idea is that, before you can sue someone, you have to show specific factual evidence of an intent to infringe.
Sounds pretty good right? In theory, this is an excellent solution, and I’m sure it would have made an excellent law review article. The problem is that it’s a terrible terrible terrible rule in practice. It’s not merely that Grokster encourages litigation, it’s that it encourages disingenuous litigation filed only as a negotiating tactic (or as an attempt to get a settlement from a big pocket).
by von
IN MY MEANDERING post below (since updated), I made the following comment:
GLENN REYNOLDS is back at InstaPundit, and it’s a bit sad: InstaPundit always improves a bit when Reynolds takes a vacation and lets others fill in. This is not a slam on Reynolds — though he has become predictable of late — but rather a recognition of the difficulty of solo blogging. Providing both quantity and quality is a tough gig, which may be why the best solo bloggers tend to be journalists (e.g., your Sullivans, Kauses, and Yglesiases) and the high-traffic nonprofessionals (e.g., Reynolds and Charles Johnson) are mostly link aggregators. You’ll find exceptions, of course. But not many.
Professor Reynolds took issue with the main point of my post, and I’ve responded. So enough of that. But Reynolds also took issue with this opening tangent and, since I have twenty seconds to waste, it’s worth twenty more seconds of thought. This is how Reynolds restates my comment above:
Really, people who even admit that they’re "nitpicking" [me] ought to at least follow the links before picking nits, especially in the process of offering a theory about the inherent inferiority of solo blogs. . . . .
I’ll leave to the reader whether Reynolds has accurately characterized my position. I didn’t think that I was offering a theory on the "inherent inferiority of solo blogs" — nor do I think that I could have been understood that way — but I have an obvious bias. (In favor of me, natch.)
In fact, there’s nothing "inherently inferior" about solo blogs. What is true — and I think indisputably so — is that there’s a high level of difficulty and a lot of work in producing a popular solo blog. It’s not easy churning out "both quantity and quality"; it’s a tough gig. So, I posit that most high-traffic solo bloggers will tend to be members of the media. This is not because, word-for-word, a member of the media is a naturally better blogger; although many are quite good. This is because members of the media have experience writing for the general public, have ready access to sources, and sometimes are even given time to blog.
A nonprofessional with a serious day job has a lot of trouble competing with that. So, Reynolds (a law professor) mostly aggregates links, saving time by citing the work of others; Charles Johnson (a web designer) does the same; Professors Bainbridge and Muller (more law professors) write less frequently; Publius joins us; John Cole takes on a co-blogger; the Volokhs start a conspiracy; Jeralyn Merritt (an attorney) also takes on cobloggers; etc. As I mentioned below, you will find exceptions — Captain Ed somehow continues to churn out high-quality product (although today he has a guest blogger) — but not many.
I don’t think that’s all too controversial a point: the blogosphere isn’t so much an "Army of Davids" as a bunch of David-bits that can assemble, Voltron-style, to slay a media Goliath. On occasion. Most of the time, however, the different bits don’t fit together, ignore one another, are actively at war — or they are too busy writing navel-gazing posts like this one. With a few notable exceptions (Reynolds may be one of them), we’re individually empowered to the precise extent that a member of a crowd is empowered: Not very much. But, man, together we can do some serious smashing.
But then, I’ve always been a bit gloomy about human nature. And certainly, I’m distrustful of claims regarding transformations via superior ideology or technology. Despite the big new idea, most folks continue to be their nasty and brutish selves. Thus, change comes slower and less predictably than one would like.
Or, more succinctly: Twenty-plus years on, the internet is still mostly for porno.
This is an open thread.
UPDATE: There’s a nuance I don’t want missed in one of my comments above. I write: "With a few notable exceptions (Reynolds may be one of them), we’re individually empowered to the precise extent that a member of a crowd is empowered: Not very much." Note what’s implied there: a member of a crowd does not have a great deal of individual power, but he does have more power than someone not in the crowd — your prototypical guy who instead lurks in his lerkim, cold under the roof.* The crowd member does have a say in the direction of a crowd: she can calm it, lead it, or shout fire. If enough folks hear her and agree, she might even change its direction. That’s the nature of being in a crowd.
The blogosphere has created a virtual crowd where none existed before. Reynolds is right in his book "An Army of Davids" to recognize the small, but real, shift in power therefrom. Unclear — and I think quite disputed — is the degree of the shift. Or, indeed, where it has shifted us. A crowd, after all, is not always an army. Sometimes it’s a mob, and a vicious one at that. And sometimes it’s simply a crowd.
*Of course, such a lurkim lurker does get to make his own clothes out of miff-muffered moof — so that’s an plus, I guess.
p.s. For those concerned that I’ve abandoned my spat with Kevin Drum and Eric Martin over our intervention in Somalia — a category that may include only me — I intend to have a follow-up later this week. I’d follow-up faster, but I have a day job that’s quite consuming ….
by hilzoy Bob Herbert, behind the TimesSelect Wall, about a Marine reservist’s return from Iraq: “By the time he came home, Jeffrey Lucey was a mess. He had gruesome stories to tell. They could not all be verified, but there was no doubt that this once-healthy young man had been shattered by his experiences. He … Read more
by hilzoy Via TPM, McClatchy: “Fired San Diego U.S. attorney Carol Lam notified the Justice Department that she intended to execute search warrants on a high-ranking CIA official as part of a corruption probe the day before a Justice Department official sent an e-mail that said Lam needed to be fired, U.S. Sen. Dianne Feinstein … Read more
by hilzoy
Mean, bad, ugly things are happening to the subprime mortgage market. (Subprime mortgages are, basically, mortgages made to less creditworthy borrowers.) Things that make normally sedate publications use words like meltdown (Forbes; also AP, Reuters, and WSJ), crisis (WaPo), turmoil, cratering, and imploding. This site maintains a list of subprime lenders that have “imploded” (which it defines to include “bankruptcy filing, possibly-temporary halting of major operations, or a last-ditch acquisition.”) As I write this, there are 41 lenders on the list.
So: what’s going on? (Note: I’ll try to explain this as best I can, but if I make mistakes, please correct them.)
by von UPDATE: Reynolds links this post with an update. Although I appreciate the link, it’s clear that Reynolds isn’t really paying attention. Here is the substance of Reynolds’ criticism: UPDATE: This post at Obsidian Wings criticizes me for not providing a link to the "unhappiness" — but if you follow the link I provide, … Read more
by hilzoy Via ThinkProgress, a story from WUSA TV about the other buildings at Walter Reed: “A major 9NEWS NOW EXCLUSIVE — allegations from a former inspector at Walter Reed of widespread and dangerous problems in nearly all the buildings at the Army’s premier hospital. Burst steam pipes near electrical cables, rats, mold, and holes … Read more
by hilzoy
It was lunchtime, and I was (and am) at home, since it’s spring break, so I made myself lunch and flipped on CSPAN, where, as luck would have it, the House Oversight Committee holding its hearings on Valerie Plame Wilson. Wilson had finished testifying, and the committee was questioning James Knodell, the Director of the White House’s security office, and the person in charge of overseeing classified information. Rep. Waxman, in questioning, established that anyone who believed that s/he might have disclosed classified information, advertently or inadvertently, has an affirmative obligation to file a report on that fact with his office, and that no such report was ever filed in connection with the disclosure of Valerie Plame Wilson’s identity. (Knodell seemed very, very uncomfortable; apparently, he was appearing voluntarily, but the White House had not wanted him to appear, and he had showed up under threat of subpoena.)
Then my Congressman, Elijah Cummings, started to question Dr. Knodell, and said that he was shocked that no such report had been filed. Had there been any investigation into this failure? After more discomfort, Knodell said: no. Under further questioning, including some by a completely incredulous Henry Waxman, he said that his office had not, at any time, investigated the leak of Wilson’s identity, and that there was an affirmative obligation to do that too.
This really is extraordinary. The point of investigating a leak of classified information is not just to assign blame; it’s also to figure out how to fix things so that no similar leaks ever happen again. The best possible spin one could put on this, for the White House, is that they were completely unconcerned with covert agents getting outed. The more likely story, of course, is that they knew perfectly well who had leaked the information, and didn’t want it investigated because they knew that the more details found their way onto paper, the worse it would be.
But think about it: a covert agent’s identity was leaked. Her networks, front organizations, and so on, as well as any people she might have had entirely innocent contacts with abroad, were put in jeopardy. Agents all over the world had to ask themselves whether they, too, might be outed for purely political reasons.
And the White House never bothered to investigate, even though they had a legal obligation to do so.
Remember how the President kept saying that he wanted to get to the bottom of this? Ha ha ha.
***
UPDATE: Excerpt from Wilson’s opening statement below the fold.
by publius Like Stoller, I see a lot of good in the 48-50 Senate “loss.” In fact, from the Democrats’ perspective, it was a pretty overwhelming victory in that it broke down almost completely on party lines. Let’s be honest — there’s no way realistically that Congress can stop the war. Even if it had … Read more