first things first

While it can be argued that all the news that’s fit to print doesn’t always get printed in the New York Times, I would like to take a brief moment to (again) critique a couple of instances when the question was not whether or not it was printed, but where.

First up, a story that appeared on the front page. . . of the Business section:

The phone company Qwest Communications refused a proposal from the National Security Agency that the company’s lawyers considered illegal in February 2001, nearly seven months before the terrorist attacks on Sept. 11, the former head of the company contends in newly unsealed court filings.

While this is certainly big business news, since Qwest chief Joseph Nacchio is fighting to stay out of jail after being convicted on insider trading charges in April, it is so much bigger than a back section implies. First, there is the open question of whether Nacchio was singled out for prosecution after failing to cooperate with Bush Administration requests to wiretap without warrant conversations involving American citizens inside the US—and that is huge—but bigger, now, to my mind, is the revelation that Bush’s NSA sought unprecedented (and illegal) spy powers well in advance of the events that Bush and company now argue necessitated these unconstitutional intrusions.

This story was actually first reported in the Rocky Mountain News last Thursday, but it took three more days to migrate to the paper of record. If corroborated, Nacchio’s allegation proves once and for all that the war on terror™ is nothing but a smokescreen for far more sinister designs. If this story received the proper front-page treatment, perhaps it might convince more congressional Democrats that Bush/Cheney’s insistence upon weaker FISA requirements is not about keeping America safe, but is about stifling dissent and fighting political opponents. (Remember that there is already anecdotal evidence that journalists have been spied upon under some NSA program or programs.)

One congressional Democrat that does read the business section, and, so, does suspect nefarious doings, is Michigan Rep. John Conyers. In a letter to DNI McConnell and a DoJ official, Conyers has asked for a full briefing on pre-9/11 spy activities, and all relevant documents.

Let’s see where (or if) that story lands in today’s papers.

. . .

Another interesting story from Sunday’s paper could be found in “Week in Review.”

Senators Joe Biden and Chris Dodd voted against it. Senator Barack Obama said he would have voted against it if he had voted. Former Senator John Edwards implied he would have voted against it if he could vote.

And Senator Hillary Rodham Clinton? She voted in favor of the measure in question, which asked the Bush administration to declare Iran’s 125,000-member Revolutionary Guard Corps a foreign terrorist organization. Such a move — more hawkish than even most of the Bush administration has been willing to venture so far — would intensify America’s continuing confrontation with Iran, many foreign policy experts say.

While the “Week in Review” section is one of the better parts of Sunday’s New York Times, it is usually considered the province of analysis, commentary, and opinion, and not so much the place where the Gray Lady reports her best news. . . which makes Helene Cooper’s story (quoted above) sorely misplaced.

For this article is actually what I would call news reporting. It gives the reader some facts, like who voted how, and what the resolution means in the estimation of several experts. It relays the widely held perception that Sen. Clinton is not so much conveying her positions to primary voters as positioning herself for the general election, but also gives room for Clinton’s campaign to respond.

It is far more informative, and, as I see it, more interesting and important, than the latest fundraising numbers. . . which regularly appear on the front page—the very front page—of the Times, usually above the fold.

It is fine to want to understand how a candidate runs, but not at the expense of knowing where she stands. It is hard not to wonder about editorial priorities—or the priorities of the editors, for that matter—when the front-page news winds up in places like the business section, while money news winds up on the front page.

Update: Could the Nacchio/wiretap story have legs? Appearing this afternoon on the “Reporter’s Notebook” segment of the PRI program To the Point, Caroline Frederickson, Director of the ACLU's legislative office in Washington, details the story of Joseph Nacchio and Bush Administration warrantless surveillance for a national radio audience. Frederickson outlines the issues raised by the Nacchio revelations and amplifies what’s at stake as clearly, succinctly, and forthrightly as I have heard to date. Explaining the speciousness of administration arguments for expanded spy capabilities with minimal oversight now that it is apparent that the NSA started domestic spying early in 2001, Frederickson asks, “How then will that keep us safer if 9/11 followed the expanded capability?”

It’s a great question, and one I’d like to see asked by many more news outlets—and many more congressional Democrats.



(cross-posted to The Seminal and Daily Kos)

another day, another broken law

Well, as you may know, I am not a lawyer, but my common sense sure keeps telling me that laws are being broken. Yesterday, I touched upon my feeling that private security contractors had likely run afoul of the Anti-Pinkerton Act of 1893; today, I want to direct your attention to 18 U.S.C. 1001, AKA The Fraud and False Statements Statute.

It was really quite by accident that I happened upon an old post by Morton Halperin (he’s the smart Halperin) that talked about how NSA director Michael Hayden’s bout of lying to Congress bore a striking resemblance to the behavior of Nixon CIA chief Richard Helms. Helms, as Halperin points out, was charged under the FFSS (my shorthand) for lying to Congress about CIA involvement in overthrowing the Allende government in Chile (he plead no contest and received a suspended sentence). That item referred me to 18 U.S.C., and this is the text of the law that once brought people to justice:

Section 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly
and willfully -
(1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry;

shall be fined under this title or imprisoned not more than 5
years, or both.
(b) Subsection (a) does not apply to a party to a judicial
proceeding, or that party's counsel, for statements,
representations, writings or documents submitted by such party or
counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the
legislative branch, subsection (a) shall apply only to -
(1) administrative matters, including a claim for payment, a
matter related to the procurement of property or services,
personnel or employment practices, or support services, or a
document required by law, rule, or regulation to be submitted to
the Congress or any office or officer within the legislative
branch; or
(2) any investigation or review, conducted pursuant to the
authority of any committee, subcommittee, commission or office of
the Congress, consistent with applicable rules of the House or
Senate.

(my apologies if the formatting above doesn’t hold to form)

OK, again, I’m not a lawyer, but as I read it, that first part about concealing and covering up and misrepresenting sure sounds like a good many moments from the last six and three-quarter years,

Specifically, I thought about 18 U.S.C. 1001 while reading two days of New York Times’ revelations about secret Justice Department memorandums that provided the “intellectual” cover for the CIA to continue the Bush/Cheney policy of torturing prisoners taken in their GWOT™. With new information about documents that gave the go-ahead to techniques and programs that Congress outlawed and the Supreme Court said violated the Geneva Conventions, documents that Bush officials from the Attorney General and DCI on down failed to provide to the appropriate oversight committees, it seems to me abundantly clear that several members of the administration have knowingly and willfully concealed and covered-up the DoJ findings, and then just as knowingly and willfully made false, fictitious, and fraudulent statements about what has actually been happening inside the White House, the Justice Department, and an unknown number of “black sites” around the world.

Saying “we do not torture” or, as White House spokesperson Dana Perino said on Thursday, “What I can tell you is that any procedures that they use are tough, safe, necessary and lawful,” actually doesn’t get around the language of the Fraud and False Statements Statute. It’s not whether the findings that Justice drafted are sound or well-reasoned or will withstand judicial scrutiny, it is that Justice drafted said findings and then failed to inform Congress while all sorts of administration personnel basically pretended that the memos didn’t exist.

News this morning tells us that Rep. John Conyers wants the memos turned over to his committee, and the ACLU is calling for an independent investigation. Could they have 18 U.S.C. in mind?

Indictments anyone?


(cross-posted to The Seminal and Daily Kos)

this one should be easy

Well, surprise, surprise, President Bush has again defied Congress and again invoked a tenuous claim of executive privilege to do so:

President Bush directed former aides to defy congressional subpoenas, claiming executive privilege and prodding lawmakers closer to their first contempt citations against administration officials since Ronald Reagan was president.

It was the second time in as many weeks that Bush had cited executive privilege in resisting Congress' investigation into the firings of U.S. attorneys.

White House Counsel Fred Fielding insisted that Bush was acting in good faith in withholding documents and directing the two aides -- Fielding's predecessor, Harriet Miers, and Bush's former political director, Sara Taylor -- to defy subpoenas ordering them to explain their roles in the firings over the winter.

In the standoff between branches of government, Fielding renewed the White House offer to let Miers, Taylor and other administration officials meet with congressional investigators off the record and with no transcript. He declined to explain anew the legal underpinnings of the privilege claim as the chairmen of the House and Senate judiciary committees had directed.

Both House Judiciary Committee Chair John Conyers and Senate Judiciary Committee Chair Patrick Leahy have issued responses. Conyers was stern but polite:

We are extremely disappointed with the White House letter. While we remain willing to negotiate with the White House, they adhere to their unacceptable all-or-nothing position, and now will not even seek to properly justify their privilege claims. Contrary to what the White House may believe, it is the Congress and the Courts that will decide whether an invocation of Executive Privilege is valid, not the White House unilaterally.

While Leahy exhibited a bit more piss and vinegar:

I have to wonder if the White House’s refusal to provide a detailed basis for this executive privilege claim has more to do with its inability to craft an effective one.

But I have to wonder if Democrats are not missing the best and easiest argument to make in this and the other privilege cases. It seems to me that what needs to be said is something like this:

President Bush has again demonstrated his belief that he, and anyone else he designates, is above the law, but worse, he has asserted that his administration owes nothing to the American people. In this case, the president’s continued insistence that his aids will only meet with Congressional investigators in secret and without a transcript confirms such disrespect. Why is it OK for administration officials to talk to a select few in private, but not OK for them to talk in the open, in front of the people that elect the president and pay the salaries of his entire staff?

We think the American people deserve to hear what these Bush aids have to say. We believe that Americans are capable of understanding the facts of this case, and, more importantly, understanding right from wrong. Judging from the position taken by President Bush, either he believes that the people are incapable of understanding, or he is deeply afraid that they will understand all too well.

the obstructionist’s obstructionist

There are many fine and forceful reactions to Monday’s announcement by President GW Bush, explaining how this decision violates sentencing law, flies in the face of precedent, and even ignores the recent opinion of the United States Supreme Court. While it has been clear for some time that the Bush cabal has little respect for the law, it also appears clear that few of their choices to flout the law are made randomly or impulsively. So, while men and women of conscience across the board express outrage at the presidential order to commute the 30-month sentence of I. Lewis “Scooter” Libby, I am left with a nagging question: Why commutation—why not a pardon?

While the establishment media is content to settle on the notion that this commutation is some sort of grand compromise crafted by a White House seeking to mollify Bush’s hard-right base while blunting the bigger backlash that would be expected from a full pardon, this strikes me as a nuance that might be lost on both sides. Sure, there is now an additional talking point for the Libby lobby—this idea that he will still live with the shame (Scooter? Shame?) and pay a fine (though, in reality, his defense fund will likely pick up the tab)—but as Scooter’s lawyers continue to pursue their appeals, and Patrick Fitzgerald continues to defend the conviction, the “base” will continue to push for a pardon. And, though admittedly without the reaction to such a pardon by which to measure it, Monday’s blistering rebukes—including Representative John Conyers’ suggestion that hearings on the leak and commutation are imminent—hardly seem blunted.

So, what’s in a commute? I am not an expert on the law here, but from clicking around, this is how I understand it:

The heart of the matter lies in the crime. Scooter Libby was convicted on obstruction charges for interfering with a federal investigation into the leak of the name of a covert CIA operative as retaliation against her husband for exposing some of the lies that comprised the administration’s case for the invasion of Iraq. The annals of the Libby investigation make it pretty clear that Vice President Dick Cheney, likely with the knowledge of President Bush and his top aids, engineered the vengeful leak. Were Libby to stop obstructing and speak truthfully as to what he knows, he could likely complete the federal case against the Vice President (at the very least).

With the dreaded time in hoosegow looming, federal prosecutors could hold out the possibility of a reduced sentence in exchange for Libby’s cooperation. Such truthful testimony would clearly be unacceptable and, indeed, threatening to Cheney, Rove, and Bush.

So, why not a pardon, then? Well, to the best of my understanding, a full pardon would eliminate Scooter’s claim to Fifth Amendment protections against self-incrimination.

. . . but would leave intact possible jeopardy for contempt of court and/or new charges of perjury. The result is that Libby could be required to testify under oath -- and under penalty of perjury and contempt -- about what others in the administration knew and when they knew it.

I also think, by extension, Libby could not take the Fifth if called to testify under oath before a congressional committee investigating the original leak. (I am making an inference here, though. If someone has a clearer understanding of this part of the law, please chime in.)

Without Libby’s Fifth Amendment rights, a large chink in the armor of VP Fourthbranch could be left exposed. And a potential witness for the prosecution stewing with his incriminating thoughts in a federal prison would be more risk and stress than this administration likely deems acceptable. Thus, commutation of Scooter’s sentence looks less like the fence-sitting compromise of a weak president, and more like the conniving plan of his powerful veep.

Motives aside, the circumstances remain the same: I. Lewis Libby’s obstruction is deemed by this lawless administration as less worthy of punishment because he obstructed on behalf of his friend and boss, Dick Cheney. Where I might differ from establishment outlets, as well as from TPM’s Josh Marshall, is that Monday’s commutation was not “the minimum necessary to keep the man silent”—it was the exact amount needed to keep the nation in the dark.

(cross-posted to capitoilette and Daily Kos)