Commentary Magazine


Topic: prosecutor

Does the Administration Mean What It Now Says About Human Rights?

Obama and his secretary of state are making some effort to step up — or start, some would say — support for human rights. Obama spoke on the topic at the UN. Albeit too little and too late, the administration is taking action against Iranian human rights abuses:

Citing “mounting evidence” of repression of the Iranian opposition, the Obama administration added more sanctions against Iranian government officials, members of the Revolutionary Guards Corps and others accused by the United States of being responsible for human rights abuses.

The sanctions, announced Wednesday by Secretary of State Hillary Clinton and Treasury Secretary Timothy Geithner, block the assets of, and prohibit U.S. citizens from engaging in any business with, those on the list, which includes the head of the Iranian Revolutionary Guards Corps, the country’s prosecutor general, and the ministers of welfare and intelligence.

There’s less here than meets the eye, however. As the Washington Post editors note, ” The high-profile announcement could give important encouragement to Iran’s opposition. But it’s worth noting that the sanctions themselves were recently mandated by Congress.” Oh. And why haven’t we committed ourselves to full support for the Green movement?

The real proof of the Obama administration’s devotion to democracy promotion will come with clear and decisive action. When do we adopt regime change as our official policy? When do we call it quits and pull the financial plug on the UNHRC? These would demonstrate actual, rather than rhetorical, support for human rights.

The Post editors observe that there’s another opportunity to prove the administration’s bona fides on human rights. Why not take action against the repressive Mubarak government, which is in the process of rigging another election?

[A] resolution authored by Sens. Russell Feingold (D-Wis.) and John McCain (R-Ariz.) has won broad and bipartisan support. The resolution urges Mr. Mubarak’s regime “to take all steps necessary to ensure that upcoming elections are free, fair, transparent and credible, including granting independent international and domestic electoral observers unrestricted access.” …

After the president’s last meeting with Mr. Mubarak this month, a White House summary said Mr. Obama had referred to the need for “credible and transparent elections in Egypt.” The question is whether the administration is willing to take action in support of its words. So far, it has offered no indication that Mr. Mubarak’s failure to accept election observers will result in any consequence for a country that receives $1.5 billion annually in American aid. Nor has the White House offered support for the Senate resolution, in public or in private. It could, at least, do that.

Let’s see what the Obama administration does. Frankly, the president’s words don’t carry all that much credibility these days.

Obama and his secretary of state are making some effort to step up — or start, some would say — support for human rights. Obama spoke on the topic at the UN. Albeit too little and too late, the administration is taking action against Iranian human rights abuses:

Citing “mounting evidence” of repression of the Iranian opposition, the Obama administration added more sanctions against Iranian government officials, members of the Revolutionary Guards Corps and others accused by the United States of being responsible for human rights abuses.

The sanctions, announced Wednesday by Secretary of State Hillary Clinton and Treasury Secretary Timothy Geithner, block the assets of, and prohibit U.S. citizens from engaging in any business with, those on the list, which includes the head of the Iranian Revolutionary Guards Corps, the country’s prosecutor general, and the ministers of welfare and intelligence.

There’s less here than meets the eye, however. As the Washington Post editors note, ” The high-profile announcement could give important encouragement to Iran’s opposition. But it’s worth noting that the sanctions themselves were recently mandated by Congress.” Oh. And why haven’t we committed ourselves to full support for the Green movement?

The real proof of the Obama administration’s devotion to democracy promotion will come with clear and decisive action. When do we adopt regime change as our official policy? When do we call it quits and pull the financial plug on the UNHRC? These would demonstrate actual, rather than rhetorical, support for human rights.

The Post editors observe that there’s another opportunity to prove the administration’s bona fides on human rights. Why not take action against the repressive Mubarak government, which is in the process of rigging another election?

[A] resolution authored by Sens. Russell Feingold (D-Wis.) and John McCain (R-Ariz.) has won broad and bipartisan support. The resolution urges Mr. Mubarak’s regime “to take all steps necessary to ensure that upcoming elections are free, fair, transparent and credible, including granting independent international and domestic electoral observers unrestricted access.” …

After the president’s last meeting with Mr. Mubarak this month, a White House summary said Mr. Obama had referred to the need for “credible and transparent elections in Egypt.” The question is whether the administration is willing to take action in support of its words. So far, it has offered no indication that Mr. Mubarak’s failure to accept election observers will result in any consequence for a country that receives $1.5 billion annually in American aid. Nor has the White House offered support for the Senate resolution, in public or in private. It could, at least, do that.

Let’s see what the Obama administration does. Frankly, the president’s words don’t carry all that much credibility these days.

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Guess the Judge’s Background

As readers of conservative blogs and magazines know, the right punditocracy has a game of “guess the party.” When a Republican does something bad, the mainstream media begin the story “Republican Sam Smith …” When a Democrat does it, you will have to search long and hard for a hint of party affiliation. The problem is so endemic that if party affiliation is not mentioned in the first graph, it is safe to assume a Democrat is involved.

So we have this story of a corrupt district court judge who is facing impeachment. As the Washington Post observes, it is juicy:

The trial is an extraordinary spectacle, featuring allegations that lawyers and bail bondsmen plied the judge, a reformed drinker and gambler, with gifts to gain his courtroom favor. Cash in envelopes. Bottles of Absolut and coolers of shrimp. A Vegas bachelor party for Porteous’s son, complete with lap dance. It showcases both the often-sordid politics of Louisiana and a struggle over constitutional precedents.

So who appointed him? What’s the judge’s party background? In the 13th paragraph we get this clue: “Mutterings about the ethics of Porteous, a state judge for 10 years and former prosecutor, began almost as soon as he landed on it in 1994.” Landed by osmosis? Ah, that would make him a Clinton appointee! Good to know.

And yes, he’s a pretty liberal judge. In 2002:

U.S. District Judge G. Thomas Porteous Jr. ordered the state to stop giving money to individuals or organizations that “convey religious messages or otherwise advance religion” with tax dollars. He said there was ample evidence that many of the groups participating in the Governor’s Program on Abstinence were “furthering religious objectives.” …

The suit, filed in May by the American Civil Liberties Union, was the first legal challenge to abstinence-only programs created under the 1996 welfare reform legislation. Bush has asked Congress to extend the $50 million-a-year program and increase other federal abstinence grants from $40 million this year to $73 million next year.

Also in 2002:

Banning pacifiers and glow sticks in an effort to curb drug use at all-night raves violates free speech and does not further the government’s war on drugs, a federal judge has ruled in permanently blocking federal agents from enforcing the ban. … The American Civil Liberties Union, though, said the ban was unconstitutional and challenged it in federal court. After the suit was filed last year, U.S. District Judge G. Thomas Porteous issued a temporary restraining order preventing the ban from taking effect.

Porteous issued a 12-page ruling Monday that sided with the ACLU in its attack on the ban.

And in 1999, in Causeway Medical Suite v. Foster, Porteous struck down the state ban on partial birth abortion.

Now none of these cases is the basis for the impeachment. But you would think that the report would say something like “A Clinton appointee responsible for a number of controversial rulings in the ACLU’s favor …” Believe me, if a Reagan appointee had been involved in controversial rulings, we would have read “A Reagan appointee criticized by civil rights groups for a slew of controversial rulings against women, orphans, and children …”

Well, you get the picture.

As readers of conservative blogs and magazines know, the right punditocracy has a game of “guess the party.” When a Republican does something bad, the mainstream media begin the story “Republican Sam Smith …” When a Democrat does it, you will have to search long and hard for a hint of party affiliation. The problem is so endemic that if party affiliation is not mentioned in the first graph, it is safe to assume a Democrat is involved.

So we have this story of a corrupt district court judge who is facing impeachment. As the Washington Post observes, it is juicy:

The trial is an extraordinary spectacle, featuring allegations that lawyers and bail bondsmen plied the judge, a reformed drinker and gambler, with gifts to gain his courtroom favor. Cash in envelopes. Bottles of Absolut and coolers of shrimp. A Vegas bachelor party for Porteous’s son, complete with lap dance. It showcases both the often-sordid politics of Louisiana and a struggle over constitutional precedents.

So who appointed him? What’s the judge’s party background? In the 13th paragraph we get this clue: “Mutterings about the ethics of Porteous, a state judge for 10 years and former prosecutor, began almost as soon as he landed on it in 1994.” Landed by osmosis? Ah, that would make him a Clinton appointee! Good to know.

And yes, he’s a pretty liberal judge. In 2002:

U.S. District Judge G. Thomas Porteous Jr. ordered the state to stop giving money to individuals or organizations that “convey religious messages or otherwise advance religion” with tax dollars. He said there was ample evidence that many of the groups participating in the Governor’s Program on Abstinence were “furthering religious objectives.” …

The suit, filed in May by the American Civil Liberties Union, was the first legal challenge to abstinence-only programs created under the 1996 welfare reform legislation. Bush has asked Congress to extend the $50 million-a-year program and increase other federal abstinence grants from $40 million this year to $73 million next year.

Also in 2002:

Banning pacifiers and glow sticks in an effort to curb drug use at all-night raves violates free speech and does not further the government’s war on drugs, a federal judge has ruled in permanently blocking federal agents from enforcing the ban. … The American Civil Liberties Union, though, said the ban was unconstitutional and challenged it in federal court. After the suit was filed last year, U.S. District Judge G. Thomas Porteous issued a temporary restraining order preventing the ban from taking effect.

Porteous issued a 12-page ruling Monday that sided with the ACLU in its attack on the ban.

And in 1999, in Causeway Medical Suite v. Foster, Porteous struck down the state ban on partial birth abortion.

Now none of these cases is the basis for the impeachment. But you would think that the report would say something like “A Clinton appointee responsible for a number of controversial rulings in the ACLU’s favor …” Believe me, if a Reagan appointee had been involved in controversial rulings, we would have read “A Reagan appointee criticized by civil rights groups for a slew of controversial rulings against women, orphans, and children …”

Well, you get the picture.

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What Obama’s Iran Policy Has Wrought

Obama’s gross miscalculation on Iran — that the mullahs could be cajoled out of their nuclear ambitions — and his failure to come up with a timely, viable plan for depriving the regime of nukes have had two tragic consequences. First, we are either on the brink of a nuclear-armed Revolutionary Islamic state or of war, carried out, most likely, by a tiny country (while the U.S. frets about “destabilizing” the region) to prevent the unimaginable from occurring. And second, we have, in a futile effort to ingratiate ourselves with a despotic reign of terror — as brutal as any on the planet — abandoned the people of Iran.

A heart-wrenching example of the latter is spelled out by Michael Weiss. He explains the fate of Shiva Nazar Ahari, an activist for democracy and human rights, who has been in and out of (mostly in) the Iranian hell-hole, Evin prison, since June of 2009. Looking at her lovely picture, one can’t help wondering what her present health and appearance must be. She has, as Weiss describes, endured the wrath of her jailers:

In 2006, after she became the spokeswoman for the Committee of Human Rights Reporters (CHRR), Ahari was kicked out of university, whereupon her troubles really began.

She was re-arrested in June 2009 and sent to Tehran’s notorious Evin Prison, where she spent 33 days in solitary confinement. The cells are so small that a short person can’t even stretch her arms or legs. One informed observer has described them to me as “human coffins.” Despite being verbally threatened by Saeed Mortazavi, Tehran’s prosecutor general, who told her she’d be murdered if she didn’t stop working on human rights campaigns in Iran, Ahari persevered. She was released in September 2009 on $200,000 bail and promptly resumed her defense of political prisoners. …

In December of last year, Ahari was arrested yet again, along with two other activists, while en route to the funeral of Grand Ayatollah Hossein Ali Montazeri, a man considered to be the clerical inspiration behind much of the Green Revolution. Ahari went on hunger strike for two days, then fell ill and was taken to Evin’s prison hospital.

And so it is for her and many other Iranians. She now stands accused of “anti-regime propaganda” and “acts against the state.” But that is not the worst of it: “the most serious charge against Ahari is ‘mohareb’ (rebellion against God), which carries with it the death penalty.”

Where is the Obama administration, for God’s sake? They have been mute. Averting their eyes. They long ago gave up on the Green Revolution and cast their lot with Ahari’s inquisitors, banking on our ability to do business with them. To make an issue out of Ahari, to label and ostracize the Iranian dictatorship in the international community as a genocidal regime and human-rights abuser, to be a clarion voice for freedom — these are not only beyond the ability of this president, but beyond his imagination.

Obama missed the window of time to both forestall a nuclear-armed, jihadist state and to help uproot an evil regime. The world and the Iranian people will pay a heavy price for it.

Obama’s gross miscalculation on Iran — that the mullahs could be cajoled out of their nuclear ambitions — and his failure to come up with a timely, viable plan for depriving the regime of nukes have had two tragic consequences. First, we are either on the brink of a nuclear-armed Revolutionary Islamic state or of war, carried out, most likely, by a tiny country (while the U.S. frets about “destabilizing” the region) to prevent the unimaginable from occurring. And second, we have, in a futile effort to ingratiate ourselves with a despotic reign of terror — as brutal as any on the planet — abandoned the people of Iran.

A heart-wrenching example of the latter is spelled out by Michael Weiss. He explains the fate of Shiva Nazar Ahari, an activist for democracy and human rights, who has been in and out of (mostly in) the Iranian hell-hole, Evin prison, since June of 2009. Looking at her lovely picture, one can’t help wondering what her present health and appearance must be. She has, as Weiss describes, endured the wrath of her jailers:

In 2006, after she became the spokeswoman for the Committee of Human Rights Reporters (CHRR), Ahari was kicked out of university, whereupon her troubles really began.

She was re-arrested in June 2009 and sent to Tehran’s notorious Evin Prison, where she spent 33 days in solitary confinement. The cells are so small that a short person can’t even stretch her arms or legs. One informed observer has described them to me as “human coffins.” Despite being verbally threatened by Saeed Mortazavi, Tehran’s prosecutor general, who told her she’d be murdered if she didn’t stop working on human rights campaigns in Iran, Ahari persevered. She was released in September 2009 on $200,000 bail and promptly resumed her defense of political prisoners. …

In December of last year, Ahari was arrested yet again, along with two other activists, while en route to the funeral of Grand Ayatollah Hossein Ali Montazeri, a man considered to be the clerical inspiration behind much of the Green Revolution. Ahari went on hunger strike for two days, then fell ill and was taken to Evin’s prison hospital.

And so it is for her and many other Iranians. She now stands accused of “anti-regime propaganda” and “acts against the state.” But that is not the worst of it: “the most serious charge against Ahari is ‘mohareb’ (rebellion against God), which carries with it the death penalty.”

Where is the Obama administration, for God’s sake? They have been mute. Averting their eyes. They long ago gave up on the Green Revolution and cast their lot with Ahari’s inquisitors, banking on our ability to do business with them. To make an issue out of Ahari, to label and ostracize the Iranian dictatorship in the international community as a genocidal regime and human-rights abuser, to be a clarion voice for freedom — these are not only beyond the ability of this president, but beyond his imagination.

Obama missed the window of time to both forestall a nuclear-armed, jihadist state and to help uproot an evil regime. The world and the Iranian people will pay a heavy price for it.

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Flotsam and Jetsam

This is presidential. This is a mensch.

Blago is right: “Well, I think the question ought to be to the prosecutor, ‘How much money of taxpayers dollars did you spend on this trial?’ I would guess tens of millions of dollars, to get a guy you targeted for — you know, for six years. And then when we didn’t even put a defense on, you could not show any corruption. And you couldn’t because it didn’t exist. The next question should be why would that person use taxpayer dollars to bring another prosecution again. The Wall Street Journal had said that this is or the Washington Post had said this has turned from a prosecution to a persecution, and should the taxpayers have to pay for a prosecutor who’s out to get somebody?”

Mitch McConnell is optimistic: “‘If the election were tomorrow, we’d have a very good day,’ the Kentucky senator said on NBC’s Meet the Press. ‘There are at least 12 seats in the Senate where Democrats are on defense. That’s pretty unusual.’ McConnell did add, however, that he does worry about ‘irrational exuberance.'”

The White House is delusional: “Throughout this long year, President Obama’s advisers have sometimes looked to Ronald Reagan for comparison and inspiration. If the Gipper could survive a deep recession, low approval ratings and an adverse midterm election in his first two years and win reelection handily two years later, then Obama could easily do the same, they reason.” Perhaps if Obama did a 180 on his agenda and started expressing affection for Americans and their values, he too could be popular again.

Howard Dean is partially correct: “I don’t think this is true of the president, but I do think his people, his political people, have got to go out and spend some time outside Washington for a while.”

Douglas Schoen is unpopular with his fellow Democrats for saying things like this: “The Obama administration’s policies and programs are not producing real, long lasting results, and there has been no real growth. Put another way, an unprecedented degree of federal government spending and intervention vis-à-vis the $787 billion dollar economic stimulus package, the $81 billion dollar bailouts of GM and Chrysler, and the enactment of health care and financial regulatory and reform bills have done nothing to stimulate our anemic recovery and have fundamentally failed at creating private sector jobs, or generating economic growth necessary for a sustainable, healthy recovery.”

Obama is toxic to his own party. Stephen Hayes on Fox News Sunday: “Well, what matters most is what Democrats are doing on the ground in individual districts in the states. And I was in Wisconsin this week in Menomonee Falls for President Obama’s speech there to an energy company. You know who didn’t show up? Tom Barrett, the Democrat running for governor. Didn’t want to be seen with the president.  … You have [Joe] Donnelly in Indiana who ran an ad taking a shot at the president, taking a shot at Nancy Pelosi. And that, it seems to me, tells us a lot more about what Democrats are thinking than some ad the DNC is doing against George W. Bush.”

Richard Blumenthal is “hopeless, doomed, toast.” Connecticut Democrats have only themselves to blame.

This is presidential. This is a mensch.

Blago is right: “Well, I think the question ought to be to the prosecutor, ‘How much money of taxpayers dollars did you spend on this trial?’ I would guess tens of millions of dollars, to get a guy you targeted for — you know, for six years. And then when we didn’t even put a defense on, you could not show any corruption. And you couldn’t because it didn’t exist. The next question should be why would that person use taxpayer dollars to bring another prosecution again. The Wall Street Journal had said that this is or the Washington Post had said this has turned from a prosecution to a persecution, and should the taxpayers have to pay for a prosecutor who’s out to get somebody?”

Mitch McConnell is optimistic: “‘If the election were tomorrow, we’d have a very good day,’ the Kentucky senator said on NBC’s Meet the Press. ‘There are at least 12 seats in the Senate where Democrats are on defense. That’s pretty unusual.’ McConnell did add, however, that he does worry about ‘irrational exuberance.'”

The White House is delusional: “Throughout this long year, President Obama’s advisers have sometimes looked to Ronald Reagan for comparison and inspiration. If the Gipper could survive a deep recession, low approval ratings and an adverse midterm election in his first two years and win reelection handily two years later, then Obama could easily do the same, they reason.” Perhaps if Obama did a 180 on his agenda and started expressing affection for Americans and their values, he too could be popular again.

Howard Dean is partially correct: “I don’t think this is true of the president, but I do think his people, his political people, have got to go out and spend some time outside Washington for a while.”

Douglas Schoen is unpopular with his fellow Democrats for saying things like this: “The Obama administration’s policies and programs are not producing real, long lasting results, and there has been no real growth. Put another way, an unprecedented degree of federal government spending and intervention vis-à-vis the $787 billion dollar economic stimulus package, the $81 billion dollar bailouts of GM and Chrysler, and the enactment of health care and financial regulatory and reform bills have done nothing to stimulate our anemic recovery and have fundamentally failed at creating private sector jobs, or generating economic growth necessary for a sustainable, healthy recovery.”

Obama is toxic to his own party. Stephen Hayes on Fox News Sunday: “Well, what matters most is what Democrats are doing on the ground in individual districts in the states. And I was in Wisconsin this week in Menomonee Falls for President Obama’s speech there to an energy company. You know who didn’t show up? Tom Barrett, the Democrat running for governor. Didn’t want to be seen with the president.  … You have [Joe] Donnelly in Indiana who ran an ad taking a shot at the president, taking a shot at Nancy Pelosi. And that, it seems to me, tells us a lot more about what Democrats are thinking than some ad the DNC is doing against George W. Bush.”

Richard Blumenthal is “hopeless, doomed, toast.” Connecticut Democrats have only themselves to blame.

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Pack It Up, Inspector Javert

Not only witty conservative bloggers are calling for Patrick Fitzgerald to hang it up. In the wake of Blago’s largely hung jury, it has dawned on many more that the prosecutor is more persecutor and a menace to the justice system. The Wall Street Journal reminds us of Fitzgerald’s presser two years ago:

Then, the U.S. Attorney spoke of “what we can only describe as a political corruption crime spree” and accused Blagojevich of “the most appalling conduct” that would have “Lincoln roll over in his grave.” It was “a truly new low,” Mr. Fitzgerald told the world. … As the former Justice Department lawyer Victoria Toensing noted in these pages at the time, Mr. Fitzgerald violated prosecutorial ethics by speaking “beyond the four corners of the complaint,” to use the criminal law vernacular for the facts at issue, thus possibly tainting the jury pool.

As the WSJ editors point out, this is not an isolated occurrence. There is a pattern at work here — smear and intimidate, throw whatever charges you can at the vilified defendant, and see what the jury will buy:

At a 2005 press conference, Mr. Fitzgerald implied that Mr. Libby had obstructed his investigation into who leaked the former CIA analyst’s name, even though he knew from the start that the real “leaker” was Richard Armitage.

Then there was the railroading of Conrad Black, the conservative newspaper baron who was convicted in 2007 using the infinitely malleable “honest services” fraud law. The Supreme Court junked much of that law earlier this year, leading to Mr. Black’s release from prison. The jury had earlier dismissed nine of the 13 charges Mr. Fitzgerald filed.

Fitzgerald is lacking in the very qualities we must demand of prosecutors: discretion and restraint. The Washington Post editors recognize this in their well-taken objection to Blago’s retrial:

Mr. Fitzgerald is entitled under the law to drag the ex-governor back into court. He has the resources to do so and the motivation: The Blagojevich brand of politics is repugnant, beyond any doubt. It perverts democracy and puts moneyed interests over the common good. But the prosecutor took his shot and lost. He should stand down before crossing another fine line — the one that separates prosecution from persecution.

Because Fitzgerald can’t or won’t recognize the difference between the two, it’s time for him to pack it in, albeit much too late for Scooter Libby and Conrad Black. One final thought: had the extent of Fitzgerald’s abuse of power been clear at the time, would President Bush have withheld a full pardon from Libby? We don’t know, but all this is further evidence of the need to rethink the notion of “special prosecutors,” who by definition are freed from the restraints that prevent ordinary prosecutors from running amok and abusing their power.

Not only witty conservative bloggers are calling for Patrick Fitzgerald to hang it up. In the wake of Blago’s largely hung jury, it has dawned on many more that the prosecutor is more persecutor and a menace to the justice system. The Wall Street Journal reminds us of Fitzgerald’s presser two years ago:

Then, the U.S. Attorney spoke of “what we can only describe as a political corruption crime spree” and accused Blagojevich of “the most appalling conduct” that would have “Lincoln roll over in his grave.” It was “a truly new low,” Mr. Fitzgerald told the world. … As the former Justice Department lawyer Victoria Toensing noted in these pages at the time, Mr. Fitzgerald violated prosecutorial ethics by speaking “beyond the four corners of the complaint,” to use the criminal law vernacular for the facts at issue, thus possibly tainting the jury pool.

As the WSJ editors point out, this is not an isolated occurrence. There is a pattern at work here — smear and intimidate, throw whatever charges you can at the vilified defendant, and see what the jury will buy:

At a 2005 press conference, Mr. Fitzgerald implied that Mr. Libby had obstructed his investigation into who leaked the former CIA analyst’s name, even though he knew from the start that the real “leaker” was Richard Armitage.

Then there was the railroading of Conrad Black, the conservative newspaper baron who was convicted in 2007 using the infinitely malleable “honest services” fraud law. The Supreme Court junked much of that law earlier this year, leading to Mr. Black’s release from prison. The jury had earlier dismissed nine of the 13 charges Mr. Fitzgerald filed.

Fitzgerald is lacking in the very qualities we must demand of prosecutors: discretion and restraint. The Washington Post editors recognize this in their well-taken objection to Blago’s retrial:

Mr. Fitzgerald is entitled under the law to drag the ex-governor back into court. He has the resources to do so and the motivation: The Blagojevich brand of politics is repugnant, beyond any doubt. It perverts democracy and puts moneyed interests over the common good. But the prosecutor took his shot and lost. He should stand down before crossing another fine line — the one that separates prosecution from persecution.

Because Fitzgerald can’t or won’t recognize the difference between the two, it’s time for him to pack it in, albeit much too late for Scooter Libby and Conrad Black. One final thought: had the extent of Fitzgerald’s abuse of power been clear at the time, would President Bush have withheld a full pardon from Libby? We don’t know, but all this is further evidence of the need to rethink the notion of “special prosecutors,” who by definition are freed from the restraints that prevent ordinary prosecutors from running amok and abusing their power.

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UN Acknowledges Lebanon’s Culpability in Border Clash

Miracles will never cease. The United Nations, of all organizations, is actually backing Israel’s account of the border clash with Lebanese troops:

The United Nations peacekeeping force in South Lebanon, Unifil, said on Wednesday it had concluded that Israeli forces were cutting trees that lay within their own territory before a lethal exchange of fire with Lebanese Army troops on Tuesday, largely vindicating Israel’s account of how the fighting started.

A Lebanese Army spokesman had said on Tuesday that the skirmishes started after Israeli soldiers crossed into Lebanese territory to cut down a tree. Israel said that its forces were clearing brush, as part of routine maintenance work, in a gap between the so-called Blue Line, the internationally recognized border, and its security fence, and that it had coordinated its actions in advance with Unifil.

That should settle the issue of culpability, but it still leaves open the question of why this happened — why did the Lebanese army open fire? I hesitate to contribute to the incessant conspiracy-theorizing in the Middle East, but it does strike me that this incident has happened just as Hezbollah has raised fears that some of its members might be indicted by a UN prosecutor investigating the murder of Lebanese leader Rafik Hariri in 2005. The Lebanese army is amply infiltrated by Hezbollah.

One wonders if this provocation isn’t designed to distract attention from what Hezbollah fears will be a real legal problem.

Miracles will never cease. The United Nations, of all organizations, is actually backing Israel’s account of the border clash with Lebanese troops:

The United Nations peacekeeping force in South Lebanon, Unifil, said on Wednesday it had concluded that Israeli forces were cutting trees that lay within their own territory before a lethal exchange of fire with Lebanese Army troops on Tuesday, largely vindicating Israel’s account of how the fighting started.

A Lebanese Army spokesman had said on Tuesday that the skirmishes started after Israeli soldiers crossed into Lebanese territory to cut down a tree. Israel said that its forces were clearing brush, as part of routine maintenance work, in a gap between the so-called Blue Line, the internationally recognized border, and its security fence, and that it had coordinated its actions in advance with Unifil.

That should settle the issue of culpability, but it still leaves open the question of why this happened — why did the Lebanese army open fire? I hesitate to contribute to the incessant conspiracy-theorizing in the Middle East, but it does strike me that this incident has happened just as Hezbollah has raised fears that some of its members might be indicted by a UN prosecutor investigating the murder of Lebanese leader Rafik Hariri in 2005. The Lebanese army is amply infiltrated by Hezbollah.

One wonders if this provocation isn’t designed to distract attention from what Hezbollah fears will be a real legal problem.

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Re: Gartenstein-Ross Defends Rashad Hussain

Hussain’s comment was not an isolated one. Josh Gerstein reports on the recording of the event that Hussain has tried to conceal from view:

Hussain refers to some provisions of the Patriot Act as “horrible” and called “dangerous” an aspect of that law that allows intelligence-related surveillance to be used in criminal cases. Most lawmakers, including many Democrats critical of the Patriot Act, have said the provision has proved valuable, because it removed a wall that made it difficult for those pursuing investigations of international terror or spying operations to share information with criminal investigators. Hussain did express support for other aspects of the law, including a provision permitting so-called roving wiretaps.

Hussain’s position seems to be in direct conflict with the current administration, but quite in tune with the grievance-mongering lobby of CAIR and other groups. But that is not all. In his speech, Hussain cited chapter and verse on the supposed persecution of Muslims:

— The court martial of Capt. James Yee, a Guantanamo chaplain initially suspected of treason and later charged with adultery. All charges were eventually dropped.

— The case of Jose Padilla, who was held without charge for more than three years as an enemy combatant on suspicions of trying to detonate a radiation-laced “dirty bomb” in the U.S. In 2006, more than a year after Hussain spoke, Padilla was charged in a terrorist plot unrelated to the dirty bomb allegations. He was convicted by a jury in 2007 and sentenced to 17 years in prison.

— The imprisonment of Yaser Hamdi, who was captured in Afghanistan, held as an enemy combatant and released to Saudi Arabia weeks after Hussain spoke.

— The prosecution of an imam and a pizzeria owner in Albany, N.Y., for conspiring with an informant in a fictitious plot to use a missile launcher to attack a Pakistani diplomat. The men were convicted in 2006 and sentenced to 15 years in prison, though their lawyers claimed the pair were entrapped.

— The prosecution of a Somali man, Nuradin Abdi, in 2004 for plotting to blow up a shopping mall in Columbus, Ohio. He pled guilty in 2007 to conspiring to support terrorism and was sentenced to 10 years in prison.

— The imprisonment of an Oregon lawyer, Brandon Mayfield, who was jailed for more than two weeks in 2004 as a material witness on suspicion of involvement in the Madrid train bombings that year. He was never charged with a crime, received an apology from the FBI, which said it misidentified his fingerprints, and brought a lawsuit that led to a reported $2 million settlement from the government in 2006.

— The prosecution of four men as alleged members of a Detroit-based Al Qaeda “sleeper cell” plotting an attack. Two of the men were convicted on terror charges in 2003 but the convictions were thrown out at the government’s request after evidence emerged of prosecutorial misconduct and an unreliable informant. The prosecutor was charged criminally with concealing exculpatory evidence but later acquitted.

Hussain went on to tell the audience at the event, held roughly two months before the 2004 election, that electing Sen. John Kerry (D-Mass.) as president could stem the tide of such cases.

This kind of rhetoric may get cheers from the Left and from CAIR but is not, even for this administration, remotely acceptable. The Obami have pointedly refused to stick up for Hussain since Friday’s revelation. At this point, I suspect they would rather have someone else in that role — someone who does not see behind every legitimate effort to defend America from Islamic fascist the specter of anti-Muslim discrimination.

Hussain’s comment was not an isolated one. Josh Gerstein reports on the recording of the event that Hussain has tried to conceal from view:

Hussain refers to some provisions of the Patriot Act as “horrible” and called “dangerous” an aspect of that law that allows intelligence-related surveillance to be used in criminal cases. Most lawmakers, including many Democrats critical of the Patriot Act, have said the provision has proved valuable, because it removed a wall that made it difficult for those pursuing investigations of international terror or spying operations to share information with criminal investigators. Hussain did express support for other aspects of the law, including a provision permitting so-called roving wiretaps.

Hussain’s position seems to be in direct conflict with the current administration, but quite in tune with the grievance-mongering lobby of CAIR and other groups. But that is not all. In his speech, Hussain cited chapter and verse on the supposed persecution of Muslims:

— The court martial of Capt. James Yee, a Guantanamo chaplain initially suspected of treason and later charged with adultery. All charges were eventually dropped.

— The case of Jose Padilla, who was held without charge for more than three years as an enemy combatant on suspicions of trying to detonate a radiation-laced “dirty bomb” in the U.S. In 2006, more than a year after Hussain spoke, Padilla was charged in a terrorist plot unrelated to the dirty bomb allegations. He was convicted by a jury in 2007 and sentenced to 17 years in prison.

— The imprisonment of Yaser Hamdi, who was captured in Afghanistan, held as an enemy combatant and released to Saudi Arabia weeks after Hussain spoke.

— The prosecution of an imam and a pizzeria owner in Albany, N.Y., for conspiring with an informant in a fictitious plot to use a missile launcher to attack a Pakistani diplomat. The men were convicted in 2006 and sentenced to 15 years in prison, though their lawyers claimed the pair were entrapped.

— The prosecution of a Somali man, Nuradin Abdi, in 2004 for plotting to blow up a shopping mall in Columbus, Ohio. He pled guilty in 2007 to conspiring to support terrorism and was sentenced to 10 years in prison.

— The imprisonment of an Oregon lawyer, Brandon Mayfield, who was jailed for more than two weeks in 2004 as a material witness on suspicion of involvement in the Madrid train bombings that year. He was never charged with a crime, received an apology from the FBI, which said it misidentified his fingerprints, and brought a lawsuit that led to a reported $2 million settlement from the government in 2006.

— The prosecution of four men as alleged members of a Detroit-based Al Qaeda “sleeper cell” plotting an attack. Two of the men were convicted on terror charges in 2003 but the convictions were thrown out at the government’s request after evidence emerged of prosecutorial misconduct and an unreliable informant. The prosecutor was charged criminally with concealing exculpatory evidence but later acquitted.

Hussain went on to tell the audience at the event, held roughly two months before the 2004 election, that electing Sen. John Kerry (D-Mass.) as president could stem the tide of such cases.

This kind of rhetoric may get cheers from the Left and from CAIR but is not, even for this administration, remotely acceptable. The Obami have pointedly refused to stick up for Hussain since Friday’s revelation. At this point, I suspect they would rather have someone else in that role — someone who does not see behind every legitimate effort to defend America from Islamic fascist the specter of anti-Muslim discrimination.

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Yoo and Bybee Cleared, Justice Department’s Shoddy Investigation Exposed

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down. Read More

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down.

UPDATE: Yoo’s attorney has released a statement. It concludes: “OPR’s work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the Department during the last year. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged — for base partisan purposes — at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate.”

UPDATE II: Bybee’s attorney has released a statement as well: “After an investigation spanning more than five years, the U.S. Department of Justice has concluded that Judge Jay S. Bybee acted in good faith and did not engage in ethical or professional misconduct during his service in the Department’s Office of Legal Counsel.” The Department has also determined that the matter does not warrant further proceedings or referral to the District of Columbia Bar. Maureen E. Mahoney, Judge Bybee’s attorney, stated that “The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee. While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor. No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. We can only hope that the Department’s decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards.”

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A Bipartisan Terror Trial

It’s nice to know that, according to the Washington Post, “President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001,” although this raises the obvious question of why he hadn’t inserted himself into the debate before now. If George W. Bush had done something like this, he would have been accused of being dangerously disengaged, intellectually uncurious, etc. It is no doubt expecting too much to expect the MSM to lodge similar accusations against the current president.

But now that Obama is getting engaged, I hope this former law professor looks beyond the options currently on offer — civil trial vs. military commissions — and puts his influence behind a third possibility: National Security Courts to be run by federal judges but with special rules of procedure to make it easier to convict terrorists. There would, for example, be no demand for Miranda rights and no absolute bar on hearsay evidence. This is a proposal that has been knocking around for a while and has picked up bipartisan support — including that of liberal law professor Neal Katyal, conservative law professor Jack Goldsmith, conservative former prosecutor Andrew C. McCarthy, and centrist journalist Stuart Taylor Jr. Yet it has gone nowhere in Congress. This is an issue where the liberal-conservative divide appears bridgeable, if only Obama would put his personal prestige behind the proposal.

It’s nice to know that, according to the Washington Post, “President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001,” although this raises the obvious question of why he hadn’t inserted himself into the debate before now. If George W. Bush had done something like this, he would have been accused of being dangerously disengaged, intellectually uncurious, etc. It is no doubt expecting too much to expect the MSM to lodge similar accusations against the current president.

But now that Obama is getting engaged, I hope this former law professor looks beyond the options currently on offer — civil trial vs. military commissions — and puts his influence behind a third possibility: National Security Courts to be run by federal judges but with special rules of procedure to make it easier to convict terrorists. There would, for example, be no demand for Miranda rights and no absolute bar on hearsay evidence. This is a proposal that has been knocking around for a while and has picked up bipartisan support — including that of liberal law professor Neal Katyal, conservative law professor Jack Goldsmith, conservative former prosecutor Andrew C. McCarthy, and centrist journalist Stuart Taylor Jr. Yet it has gone nowhere in Congress. This is an issue where the liberal-conservative divide appears bridgeable, if only Obama would put his personal prestige behind the proposal.

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Re: The D Handicap

If you think I was harsh comparing Martha Coakley to Creigh Deeds, take a peek at Gail Collins’s rant today. She says that Coakley “is the kind of candidate who reminds you that the state that gave birth to John Kennedy also produced Michael Dukakis.” She grumbles:

She is the attorney general, and her speaking style has been compared to that of a prosecutor delivering a summation to the jury. In civil court. In a trial that involved, say, a dispute over widget tariffs.

She is so tone deaf that she made fun of her opponent for standing outside Fenway Park shaking hands “in the cold.” A week before the election, Coakley was off the campaign trail entirely in Washington for a fund-raiser that was packed with the usual suspects. But undoubtedly it was well heated. … This week Coakley unleashed a hard-hitting ad that charged Brown with being, um, a Republican. Brown’s hard-hitting response charged Coakley with running a negative ad. He is generally thought to have gotten the best of that round, especially given that little mishap with the spelling of the name of the state.

Collins is, I suspect, representative of most Democrats, who now realize that Coakley could lose. And just as they began to trash Creigh Deeds in advance of the election to insulate the White House from blame, they’re putting the potential catastrophe on the shoulders of the candidate in Massachusetts. But to her credit, Collins hints that there’s no escaping the source of the Democrats’ angst: “The people who voted for Barack Obama, meanwhile, are sullen and dispirited. This is, of course, partly because of the economy, but also partly because of the sense that the president is not getting anything done.” And it’s partly because he didn’t turn out to be anything special — not a motivational presence post-election, not an eloquent leader of liberalism, and not someone who cared much about hewing to any of his campaign themes (e.g., transparency, not taxing non-rich people).

There is, as Collins notes, a huge imbalance in enthusiasm. The Republicans in Massachusetts are pumped up and can taste a huge upset. The Democrats alternate between panic and despondency. You’ll see more of this, I suspect, in many more races this year. And after a while, it’ll be hard, even for the most ardent media spinner, to blame failure on each and every one of the Democratic candidates.

If you think I was harsh comparing Martha Coakley to Creigh Deeds, take a peek at Gail Collins’s rant today. She says that Coakley “is the kind of candidate who reminds you that the state that gave birth to John Kennedy also produced Michael Dukakis.” She grumbles:

She is the attorney general, and her speaking style has been compared to that of a prosecutor delivering a summation to the jury. In civil court. In a trial that involved, say, a dispute over widget tariffs.

She is so tone deaf that she made fun of her opponent for standing outside Fenway Park shaking hands “in the cold.” A week before the election, Coakley was off the campaign trail entirely in Washington for a fund-raiser that was packed with the usual suspects. But undoubtedly it was well heated. … This week Coakley unleashed a hard-hitting ad that charged Brown with being, um, a Republican. Brown’s hard-hitting response charged Coakley with running a negative ad. He is generally thought to have gotten the best of that round, especially given that little mishap with the spelling of the name of the state.

Collins is, I suspect, representative of most Democrats, who now realize that Coakley could lose. And just as they began to trash Creigh Deeds in advance of the election to insulate the White House from blame, they’re putting the potential catastrophe on the shoulders of the candidate in Massachusetts. But to her credit, Collins hints that there’s no escaping the source of the Democrats’ angst: “The people who voted for Barack Obama, meanwhile, are sullen and dispirited. This is, of course, partly because of the economy, but also partly because of the sense that the president is not getting anything done.” And it’s partly because he didn’t turn out to be anything special — not a motivational presence post-election, not an eloquent leader of liberalism, and not someone who cared much about hewing to any of his campaign themes (e.g., transparency, not taxing non-rich people).

There is, as Collins notes, a huge imbalance in enthusiasm. The Republicans in Massachusetts are pumped up and can taste a huge upset. The Democrats alternate between panic and despondency. You’ll see more of this, I suspect, in many more races this year. And after a while, it’ll be hard, even for the most ardent media spinner, to blame failure on each and every one of the Democratic candidates.

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McCain on Obama’s “Serious Mistake” in the War on Terror

The Left has often pointed to Sen. John McCain as an exemplar of correct and moralistic thinking on the war on terror, especially when he was criticizing the Bush administration on enhanced interrogation methods. But oddly, they’ve chosen to ignore his position on Obama’s ill-conceived policies. Don’t expect to see this exchange touted in the left-wing blogosphere:

WALLACE: What do you think of the president’s plan — apparent plan to send up to 100 detainees from Guantanamo to a prison in rural Illinois?

MCCAIN: I think it’s a serious mistake, and I think that the way to dispose of the — of this issue is by having an overall policy.

Right now they’re going to — they’re going to try terrorists in New York City, thereby giving Khalid Sheik Mohammed what he wanted when he was captured. He said, “I want a trial in the United States and a lawyer.” I think they’re making a serious mistake.

WALLACE: What’s wrong with Thompson, Illinois?

MCCAIN: Well, first of all, I think that it’s anywhere in the United States. It’s not the fact that it’s Thompson, Illinois. It’s any …

WALLACE: No, but what’s wrong …

MCCAIN: … any place.

WALLACE: … with sending them there?

MCCAIN: I think that they should be either sentenced to have the kind of military commissions that we have outlined in law and may make — have to make additional changes to, and — because they are enemy combatants, and I don’t think they should be kept in prison in the United States. Read More

The Left has often pointed to Sen. John McCain as an exemplar of correct and moralistic thinking on the war on terror, especially when he was criticizing the Bush administration on enhanced interrogation methods. But oddly, they’ve chosen to ignore his position on Obama’s ill-conceived policies. Don’t expect to see this exchange touted in the left-wing blogosphere:

WALLACE: What do you think of the president’s plan — apparent plan to send up to 100 detainees from Guantanamo to a prison in rural Illinois?

MCCAIN: I think it’s a serious mistake, and I think that the way to dispose of the — of this issue is by having an overall policy.

Right now they’re going to — they’re going to try terrorists in New York City, thereby giving Khalid Sheik Mohammed what he wanted when he was captured. He said, “I want a trial in the United States and a lawyer.” I think they’re making a serious mistake.

WALLACE: What’s wrong with Thompson, Illinois?

MCCAIN: Well, first of all, I think that it’s anywhere in the United States. It’s not the fact that it’s Thompson, Illinois. It’s any …

WALLACE: No, but what’s wrong …

MCCAIN: … any place.

WALLACE: … with sending them there?

MCCAIN: I think that they should be either sentenced to have the kind of military commissions that we have outlined in law and may make — have to make additional changes to, and — because they are enemy combatants, and I don’t think they should be kept in prison in the United States.

Well, in point of fact, McCain has long argued for military commissions and never sided with the ACLU types who want full constitutional rights and civilian trials for terrorists, but this was largely ignored by the netroots looking only for comments that might support their views on the matter. In this regard, McCain is in perfect accord with former prosecutor Andy McCarthy (who vigorously disagreed with McCain on enhanced interrogation). As McCarthy pointed out recently, the arguments in favor of the detainee transfer are based on misunderstandings and misrepresentations as to the consequences of the move. He points to Sen. Dick Durbin’s unsupported contention that detainees moved to Illinois couldn’t be set free:

Nevertheless, Durbin is being disingenuous — doubly disingenuous, in fact. First, the principal fear is no longer that the Obama administration will try to free the terrorists and relocate them here. It is that the federal courts will order the release of the detainees. And second, the senator’s brave assurance that if “a detainee is found not guilty, he will not be released inside the United States” is a smokescreen. As he well knows, most of the Gitmo terrorists are not going to be found guilty or found not guilty — they’re not going to be tried at all. . .

So we have custody of extremely dangerous terrorists who cannot be tried and who will not be taken off our hands by any trustworthy country. Their detention is now being scrutinized by judges who are skeptical of the traditional military practice of indefinite detention without trial. Some of us have implored Congress to enact rules of procedure for terrorist-detention hearings that would stop judges from favoring the terrorists over the military. But Democrats like Senator Durbin have turned a deaf ear, preferring to watch the judges make up the rules as they go along.

It’s a measure of how extreme and ill-advised the Obami’s war-on-terror policies are that those who previously tangled over the Bush administration’s approach are now in full agreement. It might be illuminating to have Attorney General Eric Holder come before the Senate Armed Services Committee or the Homeland Security and Governmental Affairs Committee to be grilled by McCain on the administration’s policies. Now that would be worth watching.

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Getting Ready to Make a Fuss

Rep. Pete King (R-N.Y.); Debra Burlingame, co-founder of 9/11 Families for a Safe and Strong America; and Andrew C. McCarthy, former assistant U.S. attorney for the Southern District of New York and prosecutor in the 1993 World Trade Center bombing trial, among others, will be holding a press conference tomorrow to release details of their December 5 rally. They explain:

The Coalition formed to fight the decision of President Barack Obama and Attorney General Eric Holder to try the 9/11 co-conspirators in New York City’s federal court, effectively giving war criminals the same rights as American citizens while endangering the safety of all New Yorkers. Two weeks ago, we sent a letter signed by 300 family members of 9/11 victims to the President, Attorney General and Defense Secretary Robert Gates asking them to reverse course. The letter has now been signed by over 120,000 Americans and is posted at http://www.keepamericasafe.com.

Like the Tea Parties, this seems to have the potential to motivate ordinarily nonpolitical Americans to protest a decision that remains simply incomprehensible. The administration somehow imagined that by releasing news of its decision on a Friday when the president was out of the country, a cheesy PR move unbefitting a decision of this gravity, that it might avoid unleashing a firestorm. It seems they have misjudged, as they have so many other things, the American people.

Rep. Pete King (R-N.Y.); Debra Burlingame, co-founder of 9/11 Families for a Safe and Strong America; and Andrew C. McCarthy, former assistant U.S. attorney for the Southern District of New York and prosecutor in the 1993 World Trade Center bombing trial, among others, will be holding a press conference tomorrow to release details of their December 5 rally. They explain:

The Coalition formed to fight the decision of President Barack Obama and Attorney General Eric Holder to try the 9/11 co-conspirators in New York City’s federal court, effectively giving war criminals the same rights as American citizens while endangering the safety of all New Yorkers. Two weeks ago, we sent a letter signed by 300 family members of 9/11 victims to the President, Attorney General and Defense Secretary Robert Gates asking them to reverse course. The letter has now been signed by over 120,000 Americans and is posted at http://www.keepamericasafe.com.

Like the Tea Parties, this seems to have the potential to motivate ordinarily nonpolitical Americans to protest a decision that remains simply incomprehensible. The administration somehow imagined that by releasing news of its decision on a Friday when the president was out of the country, a cheesy PR move unbefitting a decision of this gravity, that it might avoid unleashing a firestorm. It seems they have misjudged, as they have so many other things, the American people.

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The Fullest Extent of the Law

Peter, your post “Alice in Wonderland Justice” reminds me of the old Marx Brothers routine in which Chico is standing trial and discovers that Groucho will be the judge, prosecutor, and defense lawyer. Chico asks how there can be such a procedure, and Groucho answers: “That way we can prosecute you to the fullest extent of the law.”

The Obama administration is presumably bringing terrorists to trial in New York on an assumption that not only is there proof beyond a reasonable doubt, but also that even if the defendants were acquitted, or the jury hung, or subpoenaed Bush administration officials refused to testify, or a judge ruled that the trial cannot continue after the prosecution refuses to disclose national-security secrets, the defendants will still not be allowed to go free — hence Democratic Sen. Jack Reed’s confident assertion that “international law” will permit the defendants’ continued detention after trial, regardless of its result.

If the trial turns into a soap box — with a worldwide megaphone — to castigate the Bush administration for its wartime detention policies, or to illustrate the dark night of America before Obama, it will be a fringe benefit (or perhaps even the main purpose) of the fail-safe legal proceeding — an opportunity effectively to place officials of the Bush administration in the dock and to apologize again for what came before Hope and Change.

It will be a (Groucho) Marxist procedure for the defendants (because they will not go free no matter what the verdict) and a show trial for Obama’s political opponents, conducted in order to satisfy his “base.” It will be cynical political process masquerading as the fullest extent of the law.

Peter, your post “Alice in Wonderland Justice” reminds me of the old Marx Brothers routine in which Chico is standing trial and discovers that Groucho will be the judge, prosecutor, and defense lawyer. Chico asks how there can be such a procedure, and Groucho answers: “That way we can prosecute you to the fullest extent of the law.”

The Obama administration is presumably bringing terrorists to trial in New York on an assumption that not only is there proof beyond a reasonable doubt, but also that even if the defendants were acquitted, or the jury hung, or subpoenaed Bush administration officials refused to testify, or a judge ruled that the trial cannot continue after the prosecution refuses to disclose national-security secrets, the defendants will still not be allowed to go free — hence Democratic Sen. Jack Reed’s confident assertion that “international law” will permit the defendants’ continued detention after trial, regardless of its result.

If the trial turns into a soap box — with a worldwide megaphone — to castigate the Bush administration for its wartime detention policies, or to illustrate the dark night of America before Obama, it will be a fringe benefit (or perhaps even the main purpose) of the fail-safe legal proceeding — an opportunity effectively to place officials of the Bush administration in the dock and to apologize again for what came before Hope and Change.

It will be a (Groucho) Marxist procedure for the defendants (because they will not go free no matter what the verdict) and a show trial for Obama’s political opponents, conducted in order to satisfy his “base.” It will be cynical political process masquerading as the fullest extent of the law.

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Mr. Sharpton’s Neighborhood

New York magazine recently reported on the continuing political influence of Al Sharpton, a man whose last foray into politics was the 2004 Democratic presidential primary in which he received negligible support. For some inexplicable reason, Sharpton plays the role of kingmaker in Democratic circles, with candidates falsely assuming that he holds sway with black voters. Sitting with him at the swank Grand Havana Room on Fifth Avenue, Geoffrey Gray listens to voicemails left on Sharpton’s phone from both Barack Obama and Hillary Clinton seeking Sharpton’s advice. “In the end they may all hate my guts,” Sharpton says. “But it’s the reality of the landscape . . . how much they need me and how bad. I’m sure right now they know they need me.”

One would hope that the F.B.I.’s subpoenaing several of Sharpton’s closest associates as part of an investigation to determine whether he swindled the government out of federal campaign-matching funds four years ago would dissuade the leading Democratic contenders from so shamelessly paying obeisance to this man. But if instigating race riots and defaming public servants were not enough to get Sharpton booted out of respectable circles, what’s a little embezzlement of taxpayer money?

Sharpton’s lawyer told the New York Daily News “I can’t think of a time when the Rev. Sharpton wasn’t under investigation,” which is probably accurate. His latest travails conjure up memory of this December 2000 New York Times article–perhaps the most hilarious item ever to appear in the paper–detailing a deposition Sharpton gave to the lawyers of the prosecutor he defamed in the Tawana Brawley case:

The company, he says, pays part of his rent and all of his utilities for the family home on Ditmas Avenue in Flatbush, Brooklyn. It bought some of his furniture and a couple of his business suits. It pays for most of his telephone calls. He says it now pays the $15,000 tuition for each of his two young daughters who attend the prestigious Brooklyn private school Poly Prep Country Day School. . . .
Mr. Bolnick wanted to know if Rev. Als Productions maintained an office in Mr. Sharpton’s home. Mr. Sharpton said it did.

”A separate entrance?” Mr. Bolnick asked.

”We use the front entrance for Rev. Als,” Mr. Sharpton said. ”The back entrance is what we use for the family and guests.”

Mr. Bolnick seemed a bit confused. ”But when I walk in the front door to visit, to make a business meeting with Rev. Als, I walk through your personal residence?”

Not exactly, Mr. Sharpton said. ”We consider it our personal residence, one part of the house, one that you would not walk through.”

The answer was still not getting through to Mr. Bolnick. He asked again, ”So I can go through the front door to Rev. Als without going through your personal residence?”

Mr. Sharpton then explained how his entertainment business related to his floor plan: ”We consider the living room and dining room part of Rev. Als. We entertain people for speaking engagements — hopefully the artist will sign with us. That’s all part of doing the business.”

”If I have Artist A at 1902 Ditmas and they eat in the dining room,” he said, ”that is a Rev. Als.”

The exchange ended with Mr. Bolnick noting that while he himself met clients in his living room, that did not make it an office.

”There is an office there,” Mr. Sharpton said of his house. ”But when you walk in the door, you are not walking into the office. But nor are you walking into my living quarters, either.”

On second thought, any politician worth his salt ought to be consulting Sharpton, whose parsing and inability to answer a simple question prove him to be a valuable political consultant.

New York magazine recently reported on the continuing political influence of Al Sharpton, a man whose last foray into politics was the 2004 Democratic presidential primary in which he received negligible support. For some inexplicable reason, Sharpton plays the role of kingmaker in Democratic circles, with candidates falsely assuming that he holds sway with black voters. Sitting with him at the swank Grand Havana Room on Fifth Avenue, Geoffrey Gray listens to voicemails left on Sharpton’s phone from both Barack Obama and Hillary Clinton seeking Sharpton’s advice. “In the end they may all hate my guts,” Sharpton says. “But it’s the reality of the landscape . . . how much they need me and how bad. I’m sure right now they know they need me.”

One would hope that the F.B.I.’s subpoenaing several of Sharpton’s closest associates as part of an investigation to determine whether he swindled the government out of federal campaign-matching funds four years ago would dissuade the leading Democratic contenders from so shamelessly paying obeisance to this man. But if instigating race riots and defaming public servants were not enough to get Sharpton booted out of respectable circles, what’s a little embezzlement of taxpayer money?

Sharpton’s lawyer told the New York Daily News “I can’t think of a time when the Rev. Sharpton wasn’t under investigation,” which is probably accurate. His latest travails conjure up memory of this December 2000 New York Times article–perhaps the most hilarious item ever to appear in the paper–detailing a deposition Sharpton gave to the lawyers of the prosecutor he defamed in the Tawana Brawley case:

The company, he says, pays part of his rent and all of his utilities for the family home on Ditmas Avenue in Flatbush, Brooklyn. It bought some of his furniture and a couple of his business suits. It pays for most of his telephone calls. He says it now pays the $15,000 tuition for each of his two young daughters who attend the prestigious Brooklyn private school Poly Prep Country Day School. . . .
Mr. Bolnick wanted to know if Rev. Als Productions maintained an office in Mr. Sharpton’s home. Mr. Sharpton said it did.

”A separate entrance?” Mr. Bolnick asked.

”We use the front entrance for Rev. Als,” Mr. Sharpton said. ”The back entrance is what we use for the family and guests.”

Mr. Bolnick seemed a bit confused. ”But when I walk in the front door to visit, to make a business meeting with Rev. Als, I walk through your personal residence?”

Not exactly, Mr. Sharpton said. ”We consider it our personal residence, one part of the house, one that you would not walk through.”

The answer was still not getting through to Mr. Bolnick. He asked again, ”So I can go through the front door to Rev. Als without going through your personal residence?”

Mr. Sharpton then explained how his entertainment business related to his floor plan: ”We consider the living room and dining room part of Rev. Als. We entertain people for speaking engagements — hopefully the artist will sign with us. That’s all part of doing the business.”

”If I have Artist A at 1902 Ditmas and they eat in the dining room,” he said, ”that is a Rev. Als.”

The exchange ended with Mr. Bolnick noting that while he himself met clients in his living room, that did not make it an office.

”There is an office there,” Mr. Sharpton said of his house. ”But when you walk in the door, you are not walking into the office. But nor are you walking into my living quarters, either.”

On second thought, any politician worth his salt ought to be consulting Sharpton, whose parsing and inability to answer a simple question prove him to be a valuable political consultant.

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The Real Real Pakistan

It is rare for me to agree with a writer from the New Republic over one from National Review, but I have to do so in the case of former prosecutor Andrew McCarthy’s intemperate denunciation of Pakistan. In this post, McCarthy claims that the extremists who murdered Benazir Bhutto represent the “real Pakistan”—a country that is “an enemy of the United States and the West” and “a breeding ground of Islamic holy war”. “Whether we get round to admitting it or not, in Pakistan, our quarrel is with the people,” McCarthy claims. In support of this alarming proposition he cites public opinion polls:

A recent CNN poll showed that 46 percent of Pakistanis approve of Osama bin Laden.

Aspirants to the American presidency should hope to score so highly in the United States. In Pakistan, though, the al-Qaeda emir easily beat out that country’s current president, Pervez Musharraf, who polled at 38 percent.

President George Bush, the face of a campaign to bring democracy — or, at least, some form of sharia-lite that might pass for democracy — to the Islamic world, registered nine percent. Nine!

McCarthy, who now works, ironically, at the Foundation for Defense of Democracies, concludes that Pakistan offers evidence “that placing democratization at the top of our foreign policy priorities is high-order folly.”

Josh Patashnik at the Plank dissents from this judgment, and so do I. The poll evidence that McCarthy cites—which, incidentally, was compiled by an organization called Terror Free Tomorrow, not by CNN—is more ambiguous than he suggests. Yes, bin Laden scores 46 percent approval, but Bhutto, a symbol of opposition to the Islamists, scored considerably higher—63 percent. And: “Seventy-five percent of poll respondents said suicide bombings are rarely or never justified.”

As for Bush’s rock-bottom rating, that’s easy to explain. It’s not because of our “campaign to bring democracy . . . to the Islamic world.” It’s because in Pakistan (as in Egypt, Jordan, and Saudi Arabia) we have been associated with dictatorship, not democracy. Bush has not pressed for free elections; he has been a steadfast supporter of Musharraf’s dictatorship. The result is that, as Musharraf has gotten more unpopular, so has the United States.

This might be a price worth paying if Musharraf were actually the great ally that Bush (and McCarthy) imagine him to be. He’s not. The jihadists have gotten considerably stronger on his watch, and the military he leads has long been complicit with the extremists.

McCarthy and others suggest that holding elections in Pakistan would be as misguided as holding them in the Palestinian Authority. But the differences are greater than the similarities. Notwithstanding its long history of military coups, Pakistan has over the years developed much more robust democratic institutions than the Palestinian Authority. Admittedly that’s not saying much, but Pakistan does have a relatively free press (at least it did before Musharraf imposed his State of Emergency), an independent judiciary (Musharraf’s attempts to compromise that independence have turned public opinion against him), and opposition parties that rely on the ballot box, not bullets, to win power (although Musharraf has hindered both the Pakistan People’s Party and the Pakistan Muslim League from freely competing in elections).

The best news of all is that, while there are far too many Islamist sympathizers for comfort in Pakistan, by all indications they do not represent the majority of the population. Nowhere close to it. There is simply no Islamic party in Pakistan with the kind of popular following that Hamas has in Palestine. As I have mentioned before, only 4 percent of Pakistanis in a recent poll said they were planning to support religious parties in the next election. As McCarthy might say: “Four!”
The prospects of democracy in Pakistan, in short, are much more favorable than in Palestine. In any case, the Musharraf dictatorship has lost its last scraps of legitimacy. Sticking with Musharraf is no longer a serious option. As Hussain Haqqani argues in the Wall Street Journal, America has no choice but to press for a return to democracy.

It is rare for me to agree with a writer from the New Republic over one from National Review, but I have to do so in the case of former prosecutor Andrew McCarthy’s intemperate denunciation of Pakistan. In this post, McCarthy claims that the extremists who murdered Benazir Bhutto represent the “real Pakistan”—a country that is “an enemy of the United States and the West” and “a breeding ground of Islamic holy war”. “Whether we get round to admitting it or not, in Pakistan, our quarrel is with the people,” McCarthy claims. In support of this alarming proposition he cites public opinion polls:

A recent CNN poll showed that 46 percent of Pakistanis approve of Osama bin Laden.

Aspirants to the American presidency should hope to score so highly in the United States. In Pakistan, though, the al-Qaeda emir easily beat out that country’s current president, Pervez Musharraf, who polled at 38 percent.

President George Bush, the face of a campaign to bring democracy — or, at least, some form of sharia-lite that might pass for democracy — to the Islamic world, registered nine percent. Nine!

McCarthy, who now works, ironically, at the Foundation for Defense of Democracies, concludes that Pakistan offers evidence “that placing democratization at the top of our foreign policy priorities is high-order folly.”

Josh Patashnik at the Plank dissents from this judgment, and so do I. The poll evidence that McCarthy cites—which, incidentally, was compiled by an organization called Terror Free Tomorrow, not by CNN—is more ambiguous than he suggests. Yes, bin Laden scores 46 percent approval, but Bhutto, a symbol of opposition to the Islamists, scored considerably higher—63 percent. And: “Seventy-five percent of poll respondents said suicide bombings are rarely or never justified.”

As for Bush’s rock-bottom rating, that’s easy to explain. It’s not because of our “campaign to bring democracy . . . to the Islamic world.” It’s because in Pakistan (as in Egypt, Jordan, and Saudi Arabia) we have been associated with dictatorship, not democracy. Bush has not pressed for free elections; he has been a steadfast supporter of Musharraf’s dictatorship. The result is that, as Musharraf has gotten more unpopular, so has the United States.

This might be a price worth paying if Musharraf were actually the great ally that Bush (and McCarthy) imagine him to be. He’s not. The jihadists have gotten considerably stronger on his watch, and the military he leads has long been complicit with the extremists.

McCarthy and others suggest that holding elections in Pakistan would be as misguided as holding them in the Palestinian Authority. But the differences are greater than the similarities. Notwithstanding its long history of military coups, Pakistan has over the years developed much more robust democratic institutions than the Palestinian Authority. Admittedly that’s not saying much, but Pakistan does have a relatively free press (at least it did before Musharraf imposed his State of Emergency), an independent judiciary (Musharraf’s attempts to compromise that independence have turned public opinion against him), and opposition parties that rely on the ballot box, not bullets, to win power (although Musharraf has hindered both the Pakistan People’s Party and the Pakistan Muslim League from freely competing in elections).

The best news of all is that, while there are far too many Islamist sympathizers for comfort in Pakistan, by all indications they do not represent the majority of the population. Nowhere close to it. There is simply no Islamic party in Pakistan with the kind of popular following that Hamas has in Palestine. As I have mentioned before, only 4 percent of Pakistanis in a recent poll said they were planning to support religious parties in the next election. As McCarthy might say: “Four!”
The prospects of democracy in Pakistan, in short, are much more favorable than in Palestine. In any case, the Musharraf dictatorship has lost its last scraps of legitimacy. Sticking with Musharraf is no longer a serious option. As Hussain Haqqani argues in the Wall Street Journal, America has no choice but to press for a return to democracy.

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Paris Art Woes

An old saying in Europe goes that British people “take their pleasures sadly”; an update might add that the French take theirs violently. On the night of October 6, known locally as the “Nuit Blanche” (Sleepless Night) Festival, during which musical and artistic events are presented all night long, five vandals broke into the Musée d’Orsay (Paris’s treasure trove of 19th century art) and punched a four-inch hole in an 1874 canvas by the Impressionist Claude Monet, Le Pont d’Argenteuil. Security cameras captured images of five visibly drunk Parisian teenagers forcing open a door to the museum just before midnight. After smoking cigarettes and urinating on the museum’s floor, they were scared away by the rather belated sound of an alarm. Patrick Bloche, a deputy in France’s National Assembly, reasonably inquired whether the embattled Minister of Culture Christine Albanel intends to wait until a four-inch tear is also made in the Mona Lisa, before having the locks on national museums double-checked.

The damage to the Monet painting (showing idyllic boats on the Seine River in a happier time) is less dramatic than a near-tragic episode during Paris’s “Nuit Blanche” in 2002, when the city’s openly gay mayor, Bertrand Delanoë, was stabbed in the abdomen in the City Hall in the early hours of the morning. The assailant, who almost killed the mayor, claimed to be a “devout Muslim” who “does not like politicians and in particular does not like homosexuals.”

Read More

An old saying in Europe goes that British people “take their pleasures sadly”; an update might add that the French take theirs violently. On the night of October 6, known locally as the “Nuit Blanche” (Sleepless Night) Festival, during which musical and artistic events are presented all night long, five vandals broke into the Musée d’Orsay (Paris’s treasure trove of 19th century art) and punched a four-inch hole in an 1874 canvas by the Impressionist Claude Monet, Le Pont d’Argenteuil. Security cameras captured images of five visibly drunk Parisian teenagers forcing open a door to the museum just before midnight. After smoking cigarettes and urinating on the museum’s floor, they were scared away by the rather belated sound of an alarm. Patrick Bloche, a deputy in France’s National Assembly, reasonably inquired whether the embattled Minister of Culture Christine Albanel intends to wait until a four-inch tear is also made in the Mona Lisa, before having the locks on national museums double-checked.

The damage to the Monet painting (showing idyllic boats on the Seine River in a happier time) is less dramatic than a near-tragic episode during Paris’s “Nuit Blanche” in 2002, when the city’s openly gay mayor, Bertrand Delanoë, was stabbed in the abdomen in the City Hall in the early hours of the morning. The assailant, who almost killed the mayor, claimed to be a “devout Muslim” who “does not like politicians and in particular does not like homosexuals.”

Even when such Parisian denizens of the night are not doing their worst, one wonders whether the level of urban violence in today’s Paris is really conducive to institutionalized all-night hilarity. Even in plain daylight, the French cannot be trusted with their cultural treasures. On November 16, a verdict will be handed down in the much-publicized trial of Rindy Sam, a Frenchwoman who identifies herself as an artist. Last July, Ms. Sam kissed a painting by American modernist Cy Twombly, which resides in a special collection at Avignon’s Museum of Contemporary Art. Ms. Sam smeared the white canvas with lipstick. Since her oral tribute, museum technicians have been unable to remove the lipstick stain from the canvas, previously valued at $2.8 million. Ms. Sam has explained that all she did was offer a kiss as a “gesture of love.” The museum and the collector who retains ownership of the painting are not endeared, demanding compensation to the tune of over 30,000 and 2 million euros respectively. Additionally, a prosecutor wants to fine Ms. Sam 4,500 euros for her action. Only Twombly himself, who lives in Lexington, Virginia and Italy, has kept his compensation demand to the scale of a state fair kissing booth, asking for just a single euro as “symbolic” reparation.

Since its arts collections are the mainspring of France’s tourism-based economy, and one of the main reasons why foreign visitors bother to put up with Parisian nastiness, it behooves the country to act vigorously to prevent these kinds of absurdities.

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The Libby Verdict, Take Two

Under what circumstances is it right to lie to federal investigators or to a grand jury? There is only one answer: none. If that is what Scooter Libby did–and it is what a jury of eleven concluded he did by convicting him of four of five counts–then he is guilty as charged. But Libby is still maintaining his innocence. The legal burden now falls on him, not on the government, to show why his conviction should be overturned.

Nevertheless, this case represents a terrible injustice, which was the point of my posting here yesterday that has stirred so much controversy in the comments section. Comparison with the investigation of Bill Clinton, and the perjury charges that were leveled by the House of Representatives when it voted to impeach him, is instructive.

To begin with, both cases featured the familiar phenomenon of runaway special counsels. Although the independent-counsel statute under which Clinton was endlessly investigated and ended in his impeachment has expired, it was a recipe for mischief. By vesting executive authority in a prosecutor not subject to the control of the executive branch, Congress had created a constitutional anomaly, one with unintended and destructive effects that plagued Democratic and Republican administrations alike. True, Fitzgerald’s appointment was the result of Attorney General John Ashcroft’s self-recusal, and he was endowed with a different set of powers from those granted to Kenneth Starr, but he operated every bit like a one-case prosecutor, effectively unchecked by line-authority in the executive branch.

Read More

Under what circumstances is it right to lie to federal investigators or to a grand jury? There is only one answer: none. If that is what Scooter Libby did–and it is what a jury of eleven concluded he did by convicting him of four of five counts–then he is guilty as charged. But Libby is still maintaining his innocence. The legal burden now falls on him, not on the government, to show why his conviction should be overturned.

Nevertheless, this case represents a terrible injustice, which was the point of my posting here yesterday that has stirred so much controversy in the comments section. Comparison with the investigation of Bill Clinton, and the perjury charges that were leveled by the House of Representatives when it voted to impeach him, is instructive.

To begin with, both cases featured the familiar phenomenon of runaway special counsels. Although the independent-counsel statute under which Clinton was endlessly investigated and ended in his impeachment has expired, it was a recipe for mischief. By vesting executive authority in a prosecutor not subject to the control of the executive branch, Congress had created a constitutional anomaly, one with unintended and destructive effects that plagued Democratic and Republican administrations alike. True, Fitzgerald’s appointment was the result of Attorney General John Ashcroft’s self-recusal, and he was endowed with a different set of powers from those granted to Kenneth Starr, but he operated every bit like a one-case prosecutor, effectively unchecked by line-authority in the executive branch.

As it happens, there is no evidence that Kenneth Starr, appointed under the independent-counsel law, behaved improperly in his investigation of Clinton–although, as Richard Posner argued in An Affair of State, he did throw details into his report that gratuitously damaged the President and the presidency. By contrast, there is considerable evidence that Fitzgerald stepped out of bounds, primarily by insisting both to the public and to the jury that the disclosure of Valerie Plame’s identity–the underlying action that he was appointed to investigate–was in fact a crime. This is a point that has never been established, but Fitzgerald’s overreaching on it colored the jury’s thinking about the gravity of the issues at stake, suggested a motive for lying that did not reside in proven facts, and conflicted with the judge’s ruling that the case would not hinge on Plame’s status. All this will undoubtedly form the essence of any appeal.

In retrospect, it is clear that the Clinton case, despite the President’s obviously perjured statements, should not have been permitted to move forward. Indeed, as Posner has also argued, the Supreme Court erred grievously when it ruled in 1997, unanimously, to allow a sitting President to be caught up in civil litigation involving sex.

There is another more ominous point of comparison as well. Though the unfolding Monica story made 1998 a year of endless entertainment, that was also the crucial year in which American embassies in Kenya and Tanzania were blown up by al Qaeda, and the year in which Clinton’s ineffectual response–bombing a pharmaceutical factory in Sudan and unleashing a fusillade of cruise missiles on an al-Qaeda camp in Afghanistan–led to authority-sapping charges that he was reenacting a scenario from the 1997 film Wag the Dog.

We obviously cannot know whether the feckless Clinton would have acted more vigorously abroad had he not gone to sleep every night that year thinking about how to escape from the legal consequences of his own tawdry conduct and lies, and been thinking instead about how to protect the country from its enemies. But all of us have paid a price for having a President distracted from his duties by an unbounded investigation of his private life in a year that his Secretary of State came to call “all Monica, all the time,” but should have been all counterterrorism, all the time. The bill for Clinton’s fun and frolic, and for our own, was only to come due on September 11, 2001.

Now, unlike in the 1990’s, we are at war. We do not yet know what the price tag will be for the Libby distraction, just as we do not know if his conviction will be tossed out on appeal or result in a presidential pardon. But in its broadest ramifications, the case, which arose out of an internecine dispute about the quality of foreign intelligence, augurs ill for any President’s ability to gather and evaluate the intelligence provided by subordinate agencies like the CIA, to formulate foreign policy, to defend what it has formulated from bureaucratic warfare waged by such subordinate agencies, and to keep our country secure.

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