Distinctions

by hilzoy Prompted by Bob McManus, I read most of the argument going on at Hullaballoo. Without meaning to pick on anyone in particular, it struck me that now might be a good time to draw some useful distinctions. Moderation: One can be moderate in any number of different respects. One can hold moderate political … Read more

Congress: Grow A Spine!

by hilzoy

From the NYT:

“The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush’s domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.

The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.

But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in the department saw any concrete limits to the president’s powers in fighting terrorism.

With the committee scheduled to hold the first public hearing on the eavesdropping program on Monday, the Justice Department’s stance could provoke another clash between Congress and the executive branch over access to classified internal documents. The administration has already drawn fire from Democrats in the last week for refusing to release internal documents on Hurricane Katrina as well as material related to the lobbyist Jack Abramoff.”

This is serious. Our President has already said that, in his opinion, all it takes to respect the checks and balances of our system of government is to tell eight members of Congress what he’s doing, under conditions of secrecy so extreme that they were not allowed to discuss the program with anyone and had to stash handwritten letters questioning its legality away in safes. He has chosen to circumvent the courts set up to issue warrants for domestic surveillance. He is now defying the Congress, the only remaining branch of government that could possibly exercise any oversight over his actions, actions that a lot of people have argued are illegal. (see, e.g., here.) As Katherine said, he is asserting unchecked power to do as he pleases, without even allowing any sort of oversight of his actions.

This is intolerable in our system of government. If Congress has any self-respect or independence left, they will not let this stand.

I discuss the legalities, as I understand them, below the fold. As always, ianal.

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Wanted: New Thread

by hilzoy I have been busy for the past few days: term has started, and while I usually prepare for courses in a leisurely way, this time I’ve been making up for a few weeks spent on Oxycodone. (Since I’m teaching a class on, among other things, addiction, this might have come in handy, but … Read more

Vital Freedom Lost In Uzbekistan

by hilzoy Via TAPPED comes this alarming news: “Authorities in Uzbekistan have banned fur-lined underwear after deeming it too sexy. Sales of furry underwear have soared after temperature in the region fell below minus 20C. But the government has now banned the lingerie saying they want to protect citizens from “unbridled fantasies” caused by wearing … Read more

Oh Dear God No: Special Hamas Edition

by hilzoy

Hamas seems to have won the Palestinian elections. From the Washington Post:

“The radical Islamic group Hamas won 76 seats in voting for the first Palestinian parliament in a decade, election officials announced Thursday evening, giving it a huge majority in the 132-member body and the right to form the next government. The long-ruling Fatah movement won 43 seats.

Earlier in the day, Prime Minister Ahmed Qureia and the rest of his Cabinet resigned, effectively acknowledging Hamas claims of a legislative majority before election officials released the results in a news conference.

“This is the choice of the people,” Qureia told reporters in the West Bank city of Ramallah. “It should be respected.”

The Hamas victory ends end the governing Fatah party’s decade-long control of the Palestinian Authority. It also severely complicates Palestinian leader Mahmoud Abbas’ policy of pursuing negotiations with Israel under a U.S.-backed peace plan known as the roadmap, which conflicts with Hamas’ platform in several key respects.

Hamas officials in Gaza City, where their victory was greatest, said the group has no plans to negotiate with Israel or recognize Israel’s right to exist. Europe, Israel and the United States classify Hamas, formally known as the Islamic Resistance Movement, as a terrorist organization.”

My attempts at analysis below the fold.

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Is There Nothing This Administration Does Competently?

by hilzoy From the NYT: “A new audit of American financial practices in Iraq has uncovered irregularities including millions of reconstruction dollars stuffed casually into footlockers and filing cabinets, an American soldier in the Philippines who gambled away cash belonging to Iraq, and three Iraqis who plunged to their deaths in a rebuilt hospital elevator … Read more

Moral Values In Theory And Practice

In theory, from George W. Bush’s call to anti-abortion activists today: “You believe, as I do, that every human life has value, that the strong have a duty to protect the weak, and that the self-evident truths of the Declaration of Independence apply to everyone, not just to those considered healthy or wanted or convenient. … Read more

Where Are The Right-Wing Bloggers?

by hilzoy While I was over at Michael Hiltzik’s Golden State doing research for my last post, I found another interesting post. Excerpt: “At some point over the last few days, while researching my latest columns on the Bush Medicare fiasco, I became aware of a curious void in the harmonic fabric of commentary on … Read more

Medicare Part D: Damage

by hilzoy

I remember the day my attitude towards William Weld shifted from a mild dislike to active antipathy. It was back in the mid 80s, when Weld was Governor of Massachusetts. He had recently proposed a drastic change in Massachusetts’ housing policy, which, many people feared, would lead to a lot of people winding up homeless. (I think it was a drastic curtailment of section 8 funds, but I could be wrong. I was spending a lot of time with housing policy wonks back then — a bunch of very smart, very well-informed people, mostly centrists, to whom good evidence-based policy mattered a lot more than ideological correctness — and they were all terrified about what the change would do.) One day Weld was asked about the possibility that his program would leave a lot of families homeless, and he said, in this absolutely cavalier way, that if it turned out that a lot of people were thrown out onto the street, he’d just change the program back the next year. (The ‘cavalier way’ is crucial here: I could imagine someone expressing doubts about the program, and explaining why he’d chosen to support it in a way that did justice to the problems it might cause. That would not have disturbed me in the same way. What bothered me was that Weld’s response was not thoughtful; it was flippant.)

As though just changing the program back again would be enough. As though that would make things all better again.

I thought: consider a family who were, as they say, working hard and playing by the rules, who were just barely making ends meet with help from Section 8 (or whatever it was), and who, as a result of this change, lost their home. Consider the effects on their children, who have to try, somehow, to get their homework done in a van or a homeless shelter. Consider the fights that might erupt between the parents as a result of the stress and misery of trying to figure out how to keep their family together on the streets. Marriages break up over less, and it’s hard to imagine that the stress alone wouldn’t take a serious toll on everyone around, including the kids. Consider the humiliation, for the parents, of having to take their kids to shelters and food banks, and the cost to the kids whenever one of their classmates asked: so, where do you live? (This is supposing they stayed in school. If not, consider the cost to them of dropping out or missing large chunks of school time.) Consider the impacts on their health of life on the streets. Think of all the damage that living on the street would do to a family.

Now imagine William Weld saying: Oops! my bad!, and changing the program back. This family might reapply for assistance, and in a few years might get it. But an enormous amount of damage would have been done to them in the meantime. Life on the streets is not good for anyone, especially for children. You don’t have to be some sort of miracle of empathy to recognize this. And the contrast between the thought of that damage and Weld’s completely cavalier attitude to it just enraged me.

I feel the same way about Medicare Part D. Because a lot of the damage that will be done to people as a result of Medicare Part D is like the damage done to a family by becoming homeless in this respect: you can’t just wave a magic wand and make things better again once you realize your mistake. The damage is permanent, and it cannot be undone. And that makes the thoughtless, cavalier way in which this policy was written and adopted completely outrageous.

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More Fun From Medicare Part D

by hilzoy Tomorrow’s NYT has an article about the problems poor people with mental illnesses are having with the new Medicare prescription drug plan. It’s not pretty: “On the seventh day of the new Medicare drug benefit, Stephen Starnes began hearing voices again, ominous voices, and he started to beg for the medications he had … Read more

Maryland Court Strikes Down Laws Against Gay Marriage

by hilzoy From my hometown paper: “A Baltimore Circuit Court judge today struck down Maryland’s 33-year-old law against same-sex marriage, ruling in favor of 19 gay men and women who contended the prohibition violated the state’s equal rights amendments. Anticipating that her decision eventually would be appealed to Maryland’s highest court, the Court of Appeals, … Read more

Medicare: Compare And Contrast

by hilzoy I’ve seen a few comments on various blogs saying that the problems with the rollout of Bush’s prescription drug program are inevitable, either because that’s just what happens when government gets involved in something, or because rolling out a big new program is inevitably complicated. And Mark Schmitt argues that undermining public confidence … Read more

Medicare Part D And Me

by hilzoy

As I’m sure you all know by now, the introduction of Bush’s Medicare prescription drug benefit has been an unmitigated disaster. As of last Saturday, a dozen states had declared public health emergencies because of it, and over twenty have stepped in to make sure seniors get the drugs they need. The new benefit is unbelievably confusing. One of the main reasons for choosing one of the plans it offers over others is that that plan covers all the medications you’re actually taking; yet while the insurers who offer those plans can change which medications they cover every month, seniors are locked into those plans for a whole year. And, my favorite detail of all, the government is forbidden to either compete against private companies by offering its own plan, or to bargain for lower prices on drugs.

The rollout of the plan has had its own share of problems. “Dual eligibles” — those who are eligible for both Medicare and Medicaid — have thus far had their prescriptions covered under Medicaid. Now, all of them have been enrolled in one or another plan, and will supposedly be exempt from many of its costs. The trouble is that neither the information about their new plans nor the fact that they are eligible for low co-pays seems to have found its way onto the system’s computers.

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I Like It. Heh Heh Heh.

by hilzoy Via Kevin Drum: Carville and Begala have a new, radical plan for campaign finance and lobbying reform. Nothing wishy-washy about this one: “Here’s how our plan would work: First, we raise congressional pay big time. Pay ’em what we pay the president: $400,000. That’s a huge increase from the $162,000 congressmen and senators … Read more

Gonzales v. Oregon

by hilzoy

The Supreme Court today ruled (pdf) that the Attorney General does not have the right to decide that doctors who prescribe controlled substances under Oregon’s Death With Dignity Act can be prosecuted. This means that physician-assisted suicide can continue in Oregon, where it is legal subject to very tight controls and is used pretty rarely (pdf).

I suspect that this is one of those decisions that will outrage a lot of conservatives, despite the fact that it is, at bottom, a very conservative opinion. For some reason, while most of us have no trouble understanding that we should support e.g. a fair election in which our side lost, because having a system in which we choose our representatives through elections matters more than getting the result we want in any given case, lots of people seem to have trouble taking a similar view of court cases. Some liberals have been known to argue that anyone who opposes something ought to think that federal laws against it should be upheld, regardless of whether those laws have anything to do with any power given to Congress under the Constitution. Likewise, some conservatives who normally rail against judicial activism in the abstract are furious when the court strikes down laws banning things they happen not to like, regardless of whether or not the Congress had the right to enact those laws. In both cases, the idea that one might like a procedure for making decisions better than any alternative, even when in a given instance it produces a result one doesn’t like, seems to get lost.

In this case, Attorney General Ashcroft was asserting that the Controlled Substances Act gave him an extraordinary amount of power: the power (1) to interpret the Controlled Substances Act (and specifically to decide what its requirement that drugs be prescribed for a ‘legitimate medical purpose’ means), and therefore (2) by deciding what the ‘legitimate practice of medicine’ means, to regulate the practice of medicine, which has traditionally been left to the states; and (3) to criminalize any conduct by doctors that does not accord with his interpretation. These are large powers, and it’s hard to read the Controlled Substances Act as having granted them to the Attorney General. Traditional conservatives should be concerned by any such federal power grab, especially since there is no reason whatsoever to think that it can only be used in the context of physician assisted suicide.

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I Gutted The Constitution, And All I Got Was This Lousy T-Shirt!

by hilzoy

The NSA program to eavesdrop on American citizens was, according to George W. Bush, a limited program that only monitored the phone calls of genuine, certified Bad People:

“This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner,” he told reporters. “These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings, and churches.”

And:

“”If somebody from al Qaeda is calling you, we’d like to know why.””

Apparently, the FBI agents who had to track down the leads generated by the NSA wiretaps saw things a bit differently:

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

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

F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans’ international communications and conducting computer searches of phone and Internet traffic. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans’ privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mr. Mueller asked senior administration officials about “whether the program had a proper legal foundation,” but deferred to Justice Department legal opinions, the official said.

President Bush has characterized the eavesdropping program as a “vital tool” against terrorism; Vice President Dick Cheney has said it has saved “thousands of lives.”

But the results of the program look very different to some officials charged with tracking terrorism in the United States. More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.

“We’d chase a number, find it’s a schoolteacher with no indication they’ve ever been involved in international terrorism – case closed,” said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. “After you get a thousand numbers and not one is turning up anything, you get some frustration.””

And for this it was worth violating the privacy of an unknown number of Americans, instructing government agencies to violate criminal law, and asserting that the President has powers more commonly associated with dictators? Sheesh.

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Wonderful

by hilzoy It’s late, and for some reason I can’t sleep, so I was surfing around and found this wonderful news: "A dozen miners trapped 12,000 feet into a mountainside since early Monday were found alive Tuesday night just hours after rescuers found the body of a 13th man, who died in an explosion in … Read more

Poor, Poor Pitiful Me! Open Thread

by hilzoy Tomorrow, at the ungodly hour of 7:45am, I have to present myself at the hospital for surgery. (Nothing dire, just repair work.) There’s no internet access in the hospital rooms, so I will be incapable of posting for the 3-4 days I’m supposed to be in one of them, and I probably won’t … Read more

Fight The Power! (Special NRO Edition)

Check out this post, from the NRO’s Bench Memos, on Bush’s signing statement on the McCain and Graham amendments: “At the lefty legal blog “Balkinization,” Washington attorney Marty Lederman has a post on the signing statement that conveys the good news that the president is not taking the McCain amendment lying down, and may plan … Read more

Oh No! Not Barbie….

by hilzoy

Via AmericaBlog, here’s the Concerned Women for America:

“The iconic Barbie Doll has become another tool for promoting gender confusion among children. On the Barbie Web site, www.Barbie.com, there is a poll that asks children their age and sex. The age choices are 4-8, but as Bob Knight, Director of CWA’s Culture & Family Institute, notes children are given three options for their choice of gender.”

On the audio link from the web page, which contains a faux news piece on the subject of Mattel’s perfidy, they say:

“And this is directed at children aged four through eight. Those are the only age options in this poll. that’s a really young age to be directing something along the lines of bisexuality, gender confusion.”

Guess what the third option is? Do they give children the option of saying they’re androgynous? Hermaphrodites? What one of the guys in the biker bar I used to work at called “She-males”? The horrifying answer is below the fold…

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Sandy Levinson on Alito

by hilzoy Sandy Levinson has written two very good posts about Alito on Balkinization (1, 2). An excerpt from the second, which concerns this Washington Post story: “The most important paragraph is the following: “Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the … Read more

Promises, Promises…

by hilzoy Remember this? “Having helped to liberate Iraq, we will honor our pledges to Iraq, and by helping the Iraqi people build a stable and peaceful country, we will make our own countries more secure.” Or this? “America pledged to rid Iraq of an oppressive regime, and we kept our word. (Applause.) America now … Read more

Bush “Signs” McCain And Graham Amendments

by hilzoy

Via Marty Lederman at Balkinization: On Friday, the President signed the law including the McCain and Graham Amendments. However, he did so with several large caveats. I’m going to put most of this post below the fold, since it’s long. However, here’s Marty Lederman’s short version:

“I reserve the constitutional right to waterboard when it will “assist” in protecting the American people from terrorist attacks.”

And my even shorter, Cartmanesque version:

“Respect Mah Authoritah!!!!!”

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Victor Davis Hanson Rewrites History (With Special Pesh Merga Addendum)

by hilzoy

Victor Davis Hanson thinks — and I use that term generously — that those of us who believe that the war in Iraq is going badly do so only because we have no sense of history and are unwilling to accept success when it stares us in the face:

“The same paradox of success is true of Iraq. Before we went in, analysts and opponents forecasted burning oil wells, millions of refugees streaming into Jordan and the Gulf kingdoms, with thousands of Americans killed just taking Baghdad alone. Middle Eastern potentates warned us of chemical rockets that would shower our troops in Kuwait. On the eve of the war, had anyone predicted that Saddam would be toppled in three weeks, and two-and-a-half-years later, 11 million Iraqis would turn out to vote in their third election — at a cost of some 2100 war dead — he would have been dismissed as unhinged.

But that is exactly what has happened. And the reaction? Democratic firebrands are now talking of impeachment.

What explains this paradox of public disappointment over things that turn out better than anticipated? Why are we like children who damn their parents for not providing yet another new toy when the present one is neither paid for nor yet out of the wrapper?

One cause is the demise of history. The past is either not taught enough, or presented wrongly as a therapeutic exercise to excise our purported sins.

Either way the result is the same: a historically ignorant populace who knows nothing about past American wars and their disappointments — and has absolutely no frame of reference to make sense of the present other than its own mercurial emotional state in any given news cycle.”

Also, we thought we weren’t going to take any casualties at all:

“After Grenada, Panama, Gulf War I, Serbia, Kosovo, Bosnia, Afghanistan, and the three-week war to remove Saddam, we decreed from on high that there simply were to be no fatalities in the American way of war. If there were, someone was to be blamed, censured, or impeached — right now!”

Let’s just pass over the last point in silence — the idea that anyone thought that the war in Iraq would not involve casualties is too ludicrous a straw man to waste time on. Let’s also pass over the fundamental incoherence of Hanson’s basic argument, which as best I can tell goes like this:

(1) Liberals expected the war to go badly.

(2) It didn’t.

(3) Liberals are very disappointed, because, having no sense of history, they expected everything to be perfect.

(Huh?)

Let’s talk, instead, about who in this debate has a good sense of history and its disappointments.

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Move Over, Buddhist Temple: Here’s A Real Scandal

by hilzoy From the Washington Post: “The U.S. Family Network, a public advocacy group that operated in the 1990s with close ties to Rep. Tom DeLay and claimed to be a nationwide grass-roots organization, was funded almost entirely by corporations linked to embattled lobbyist Jack Abramoff, according to tax records and former associates of the … Read more

Happy New Year!

by hilzoy I celebrated New Year’s Eve a day early by going up to NY to see Patti Smith in concert with javelina, an old friend of mine from college, with whom I used to listen to Patti Smith back when we were in college. It was absolutely wonderful: both the concert and seeing javelina, … Read more

Moral Values In Action

by hilzoy Sometimes I wonder: will the Bush administration ever run out of issues on which to take completely appalling positions? They have defended torture and extraordinary rendition; they defend their right to imprison American citizens without warrants or charges, indefinitely; they seem to think it’s OK both to defy the law and to spy … Read more

Post-Christmas Open Thread

by hilzoy What would Bill O’Reilly make of me, I wonder? I love Christmas. I just love it. Partly this is because I have a very Christmas-y family, and we always had very Christmas-y Christmases. We made gingerbread cookies to hang on the tree; we made all sorts of decorations; we went carolling (except for … Read more

No Relief To Offer

by hilzoy

I have written previously about the case of Abu Bakker Qassim and A’del Abdu al-Hakim, the two Uighurs who are still being held at Guantanamo, four years after they were captured by bounty hunters and turned over to the US for cash, and nine months after a tribunal found that — oops! — they were not enemy combatants after all. Today the judge who is hearing their case issued an extraordinary decision.

In it, the judge reached two conclusions. The first is that the detention of Qassim and al-Hakim is illegal:

“The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.”

The second is that there is nothing he can do about it:

“In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared “no longer enemy combatants.” Now facing that question, I find that a federal court has no relief to offer.”

We are illegally detaining innocent people, and there is nothing that a federal court can do about it.

I’ll stop for a moment to let that sink in.

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The FISA Court Is Upset

by hilzoy From the Washington Post: “The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush’s domestic spying program, according to several intelligence and government sources. Several members of the … Read more

Play Break!

by hilzoy

Time for a break from the NSA story. While doing actual work, I ran across a fascinating study (behind subscription wall) in Evolution and Human Behavior. It’s called ‘Sex differences in response to children’s toys in nonhuman primates (Cercopithecus aethiops sabaeus)’.

Here’s what it’s about: as most parents know, little boys tend to be more interested in toys like trucks, and little girls in toys like dolls. (I was an exception: someone gave me a doll once, and I dissected it.) There is no obvious way to decide whether this is innate or a cultural artifact by watching human children. So why not see whether the same gendered toy preferences exist in, oh, vervet monkeys?

Guess what? They do.

“The percent of contact time with toys typically preferred by boys (a car and a ball) was greater in male vervets (n = 33) than in female vervets (n = 30) ( P < .05), whereas the percent of contact time with toys typically preferred by girls (a doll and a pot) was greater in female vervets than in male vervets ( P < .01). In contrast, contact time with toys preferred equally by boys and girls (a picture book and a stuffed dog) was comparable in male and female vervets. The results suggest that sexually differentiated object preferences arose early in human evolution, prior to the emergence of a distinct hominid lineage."

Discuss.

(Graphs and photos below the fold.)

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Intellectual Integrity Watch: Clinton And Carter Did It Too! Edition

by hilzoy Yesterday, Matt Drudge ran a story with the headline: “FLASHBACK: CLINTON, CARTER SEARCH ‘N SURVEILLANCE WITHOUT COURT ORDER”. It has been picked up by all sorts of conservative blogs, including Pyjamas Media, Powerline, RedState, and lots, lots more. The only problem is that, as Think Progress explains, the orders signed by Carter and … Read more

FISA Judge Resigns

by hilzoy From the Washington Post, under the headline “Spy Court Judge Quits In Protest“: “A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources. U.S. District Judge James Robertson, one of 11 members … Read more

When It Rains, It Pours…

by hilzoy From the NYT: “Jack Abramoff, the Republican lobbyist under criminal investigation, has been discussing with prosecutors a deal that would grant him a reduced sentence in exchange for testimony against former political and business associates, people with detailed knowledge of the case say. Mr. Abramoff is believed to have extensive knowledge of what … Read more