Putting the Cart Before the Horse

Ted Olson, former solicitor general, focuses on the danger of launching investigations before determining whether a crime has been committed:

Mr. Fitzgerald justified his subpoenas on the ground that the journalists were “eyewitnesses to the crime.” But he was unable to establish, and he certainly hasn’t charged, that there was a crime in the first place. If special prosecutors can be empowered to investigate allegations of conduct that isn’t first established to be criminal, and to interrogate witnesses — especially reporters — about memories of distant conversations with sources regarding conduct that isn’t plainly criminal, there is no politically motivated allegation that can’t be turned into a criminal cover-up. So, regardless of how one might feel about the administration or the war in Iraq, the circumstances of this prosecution, and the involvement of reporters such as Tim Russert as prosecution witnesses, ought to give us occasion to pause and consider the implications of Mr. Fitzgerald’s redefinition of “Meet the Press.”

From an article in today’s Wall Street Journal available in the print edition or to subscribers of the online edition.

As If

Christopher Hitchens doesn’t have much use for Patrick Fitzgerald:

If–and one has to say “if”–the transmission of any classified information is a crime, then as Mr. Fitzgerald also confirmed, one would be in the deep waters of the Espionage Act, which is “a very difficult statute to interpret.” Actually, it is a very easy act to interpret. It declares that even something very well-known is secret if the state defines it as secret: the same principle as the dreaded British Official Secrets Act. As to the critical question of whether Ms. Plame had any cover to blow, Mr. Fitzgerald was equally insouciant: “I am not speaking to whether or not Valerie Wilson was covert.”

In the absence of any such assertion or allegation, one must be forgiven for wondering what any of this gigantic fuss can possibly be about. I know some apparently sensible people who are prepared to believe, still, that a Machiavellian cabal in the White House wanted to punish Joseph Wilson by exposing his wife to embarrassment and even to danger. So strong is this belief that it envisages Karl Rove (say) deciding to accomplish the foul deed by tipping off Robert Novak, one of the most anti-Iraq-war and pro-CIA journalists in the capital, as if he were precisely the pliant tool one would select for the dastardly work. And then, presumably to thicken the plot, Mr. Novak calls the CIA to confirm, as it readily did, that Ms. Plame was in the agency’s employ.

Meanwhile, and just to make things more amusing, George Tenet, in his capacity as Director of Central Intelligence, tells Dick Cheney that he employs Mr. Wilson’s wife as an analyst of the weird and wonderful world of WMD. So jealously guarded is its own exclusive right to “out” her, however, that no sooner does anyone else mention her name than the CIA refers the Wilson/Plame disclosure to the Department of Justice.

Mr. Fitzgerald, therefore, seems to have decided to act “as if.” He conducts himself as if Ms. Plame’s identity was not widely known, as if she were working under “non official cover” (NOC), as if national security had been compromised, and as if one or even two catch-all laws had been broken. By this merely hypothetical standard, he has performed exceedingly well, even if rather long-windedly, before pulling up his essentially empty net.

However, what if one proposes an alternative “what if” narrative? What if Mr. Wilson spoke falsely when he asserted that his wife, who was not in fact under “non-official cover,” had nothing to do with his visit to Niger? What if he was wrong in stating that Iraqi envoys had never even expressed an interest in Niger’s only export? (Most European intelligence services stand by their story that there was indeed such a Baathist initiative.) What if his main friends in Niger were the very people he was supposed to be investigating?

Well, in that event, and after he had awarded himself some space on an op-ed page, what was to inhibit an employee of the Bush administration from calling attention to these facts, and letting reporters decide for themselves? The CIA had proven itself untrustworthy or incompetent on numerous occasions before, during and after the crisis of Sept. 11, 2001. Why should it be the only agency of the government that can invoke the law, broken or (as in this case) unbroken, to protect itself from leaks while protecting its own leakers?

All worthwhile information in Washington is “classified” one way or another. We have good reason to be grateful to various officials and reporters who have, in our past, decided that disclosure was in the public interest. None of the major criticisms of the Bush administration would have become available if it were not for the willingness of many former or serving bureaucrats to “go public.” But this widely understood right–now presumably in some jeopardy–makes no sense if supporters of the administration are not permitted to reply in kind.

The Unhinged

David Brooks examines why the Democrats are so “unhinged” (a good example being Frank Rich in his column today) over Wilsongate:

The answer is found in an essay written about 40 years ago by Richard Hofstadter called “The Paranoid Style in American Politics.” Hofstadter argues that sometimes people who are dispossessed, who feel their country has been taken away from them and their kind, develop an angry, suspicious and conspiratorial frame of mind. It is never enough to believe their opponents have committed honest mistakes or have legitimate purposes; they insist on believing in malicious conspiracies.

“The paranoid spokesman,” Hofstadter writes, “sees the fate of conspiracy in apocalyptic terms – he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values. He is always manning the barricades of civilization.” Because his opponents are so evil, the conspiracy monger is never content with anything but their total destruction. Failure to achieve this unattainable goal “constantly heightens the paranoid’s sense of frustration.” Thus, “even partial success leaves him with the same feeling of powerlessness with which he began, and this in turn only strengthens his awareness of the vast and terrifying quality of the enemy he opposes.”

So some Democrats were not content with Libby’s indictment, but had to stretch, distort and exaggerate. The tragic thing is that at the exact moment when the Republican Party is staggering under the weight of its own mistakes, the Democratic Party’s loudest voices are in the grip of passions that render them untrustworthy.

Wisdom From a Former Spin Doctor

Lanny Davis, former Clinton spin doctor, makes a couple of remarkable admissions and a wise observation on how Wilsongate could have been avoided:

I often wonder whether those of us in the Clinton White House who attacked the motives of Kenneth Starr, the Whitewater special prosecutor, and tried to demonize him personally would have been better off if we had focused solely on his professional misjudgments and his disproportionate expenditure of time, effort and money.

Similarly, the Democrats are playing up the idea that White House officials may have endangered national security in playing hardball politics. Well, I can remember all the times I picked up the phone and talked “on background” to reporters, “pushing back” against rumors damaging to President Clinton and citing information that I thought was “out there.” I don’t remember ever worrying about whether the facts that I felt were public knowledge might have been classified. But even if I had, I would probably have rationalized that anything I had heard on the grapevine couldn’t possibly be a state secret. If every political aide was prosecuted for those kinds of conversations with the press corps, I’m afraid there wouldn’t be enough jails to hold us.

… this entire mess could have been avoided had the White House, including the vice president, criticized Ambassador Joseph Wilson openly and directly, rather than whispering “on background” into the ears of certain reporters that his wife was responsible for sending him to investigate possible Iraqi attempts to buy uranium in Niger.

Is "Scooter" that Dumb?

My quick take on the indictment of “Scooter” Libby is: Anyone who’s dumb enough to lie to a grand jury deserves to go to jail.

I’m confused however by Fitzgerald’s comments on the underlying “crime” of the “blowing” of Mrs. Wilson’s “cover.” Fitzgerald clearly believes that this is a serious offense. I just wish someone had asked him the following questions: Did Joe Wilson and his wife seriously believe that her position at the CIA would have remained a secret for long once Joe went public in the New York Times about his “classified” report on his trip to Niger? Is it believable that no one but folks in the Bush administration knew where she worked, and that reporters wouldn’t find out even if Libby and the others had kept their mouths shut? Also why didn’t someone ask Fitzgerald about Mrs. Wilson’s posing for pictures in Vanity Fair, particularly the one in which she’s wearing dark glasses and a head scarf while seated next to her husband in a convertible? Call me naive, but do undercover, “covert” secret agents who care about their covert status normally pose for pictures in celebrity magazines?

Finally, Fitzgerald seemed to concede that the law dealing with the identity of covert agents is a difficult law on which to base an indictment. But then he blamed Libby for making it impossible to charge him with violating that law by “refusing to be straight with us.” Perhaps some lawyers out there can educate me on this, but maybe it’s because the law is not meant to give once covert agents limitless protection, a protection which would place them above the law. So yes, the protection does not last a lifetime and yes, a prosecutor has to meet certain standards as to the accused’s intent and state of mind etc. In other words, the law’s authors wanted to give covert agents a limited protection, but they also wanted a pretty high burden of proof to be on the accuser. So Libby didn’t cooperate in his own prosecution by revealing his state of mind and motivations, thus preventing Fitzgerald from indicting him for the underlying crime. To me the Wilsons were distinctly unconcerned about Mrs. Wilson’s cover and thus no one who named her as playing a part in her husband’s trip to Niger is guilty of a crime.

But the bottom line is: You’re not permitted to lie under oath to a grand jury.

Neocons Win World Series!

The inside story of how the right wing Jewish cabal swept the Astros.

First the Debacle, Then the Quagmire

Military historian Victor Davis Hanson puts Iraq casualties in context:

Comparative historical arguments… are not much welcome in making sense of the tragic military deaths – any more than citing the tens of thousands Americans who perish in traffic accidents each year. And few care to hear that the penultimate battles of a war are often the costliest – like the terrible summer of 1864 that nearly ruined the Army of the Potomac and almost ushered in a Copperhead government eager to stop at any cost the Civil War, without either ending slavery or restoring the Union. The battle for Okinawa was an abject bloodbath that took more than 50,000 American casualties, yet that campaign officially ended less than six weeks before Nagasaki and the Japanese surrender.

Compared with Iraq, America lost almost 17 times more dead in Korea, and 29 times more again in Vietnam – in neither case defeating our enemies nor establishing democracy in a communist north.

…Television and the global news media have changed the perception of combat fatalities as well. CNN would have shown a very different Iwo Jima – bodies rotting on the beach, and probably no coverage of the flag-raising from Mount Suribachi. It is conventional wisdom now to praise the amazing accomplishment of June 6, 1944. But a few ex tempore editorial comments from Geraldo Rivera or Ted Koppel, reporting live from the bloody hedgerows where the Allied advance stalled not far from the D-Day beaches – a situation rife with intelligence failures, poor equipment and complete surprise at German tactics – might have forced a public outcry to withdraw the forces from the Normandy “debacle” before it became a “quagmire.”

Someone – perhaps Gens. Omar Bradley, Dwight Eisenhower or George Marshall himself – would have been fired as responsible for sending hundred of poorly protected armored vehicles down the narrow wooded lanes of the Bocage to be torched by well-concealed Germans. Subsequent press conferences over underarmored Sherman tanks would have made the present furor over Humvees in Iraq seem minor.

We are also now a different, much more demanding people. Americans have become mostly suburban, at great distance from the bloodletting and routine mayhem on the farms of our ancestors. We feel cheated if we don’t die at 85 in quiet sleep rather than, as in the past, at 50 right on the job. Popular culture demands that we look 40 when we are 60, and with a pill we can transform fatal diseases into the status of mere runny noses. (Admittedly, this same degree of medical technology has kept the death total in Iraq a far smaller percentage of overall casualties than it would have been in any earlier war.)

Our technology is supposed to conquer time and space, and make the nearly impossible seem boringly routine. Ejecting a half-million or so Iraqis from Kuwait halfway around the world in 1991, or stopping Slobodan Milosevic from killing civilians is not just conceivable, but can and should be done almost instantly with few or no American lives lost. With such expectations of perfection, any death becomes a near national catastrophe for nearly 300 million in a way the disasters at the battles of Antietam and Tarawa were for earlier, fewer and poorer Americans.

If our enemies similarly believed in the obsolescence of war that so heartlessly has taken 2,000 of our best young men and women, then we could find solace in our growing intolerance of any battlefield losses. But until the nature of man himself changes, there will be wars that take our youth, and we will be increasingly vexed to explain why we should let them.

Their Hearts Belong to Joe

Queens of Denial:The Washington Post and The New York Times.

Double Standard?

Bill Kristol, in the Weekly Standard, addresses the double standard issue concerning the CIA leak case and the Clinton impeachment:

…I will go out on a limb to say this, based on the very limited information one can glean from press accounts: It seems to me quite possible–dare I say probable?–that no indictments would be the just and appropriate resolution to this inquiry.

I say this knowing that administration officials may have engaged in behavior that is not altogether admirable. I say this knowing that legions of Clinton defenders will complain that conservatives were happy to support the impeachment of a president for lying under oath seven years ago. My response to the second charge is that if anyone lied under oath the way Bill Clinton did–knowingly and purposefully in order to thwart a legitimate legal process, or if anyone engaged in an obstruction of justice, the way Bill Clinton did, then indictments would be proper. What is more, the Clinton White House mounted an extraordinary–and successful–political campaign against the office of the independent counsel and the person of Kenneth Starr. All the evidence suggests that the Bush White House has been fully cooperative with, even deferential to, the Fitzgerald investigation. And as for the first point, many people in government and politics engage in behavior that is less than admirable. That said, defending one’s bosses against criticism, and debunking their attackers, is not a criminal conspiracy. Spin is not perjury. Political hardball is not a felony.

I would disagree with Kristol on one point: debunking your attackers when your attacker is a liar ( as is demonstrably true of Joe Wilson) is both admirable and a patriotic duty. Perhaps Kristol means is that it was less than admirable to debunk Wilson through anonymous leaks to reporters. I don’t understand why the administration couldn’t have done the debunking directly through an oped column, letter to the editor, press release or news conference.

The Times' Crackup

Terrific editorial in the New York Sun on the crackup at the Times.

You should read the entire piece, but here’s the concluding paragraph:

Who has been the better journalist – Judith Miller or those attacking her in her own paper’s pages? Ms. Miller was sounding the alarm about the Iraqi threat and working her sources and fighting not to get beat. Ms. [Maureen] Dowd was parroting unsubstantiated smears, and Mr. [Joe] Wilson was falsely downplaying Iraq’s effort to obtain weapons of mass destruction, without disclosing to Times readers his wife’s institutional interests. And huge numbers of Times reporters have been complaining about her to competing news companies. To which we can only say that if Ms. Miller is to be run out of the Times in favor of Ms. Dowd and Mr. Wilson and those who believe, falsely, that the Iraq war was all just an elaborate con job by Mr. [Ahmad] Chalabi and his neoconservative allies – well, then the Times is in even worse straits than we thought.