Commentary Magazine


Topic: special prosecutor

WH Needs Special Prosecutor Now

Senate Republicans have been calling on President Obama to appoint a special prosecutor to look into the national security leaks from the White House. This is even more critical in the wake of the Eric Holder contempt vote, as the same Obama-appointed U.S. attorney is now in charge of dealing with the charges against Holder and the investigation into the intelligence leaks.

The most obvious problem is the conflict of interest. It’s doubtful that U.S. Attorney for D.C. Ronald Machen, an Obama appointee, can fairly investigate his own boss (Eric Holder), or his boss’s boss (President Obama) in either the leak cases or the Fast and Furious stonewalling.

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Senate Republicans have been calling on President Obama to appoint a special prosecutor to look into the national security leaks from the White House. This is even more critical in the wake of the Eric Holder contempt vote, as the same Obama-appointed U.S. attorney is now in charge of dealing with the charges against Holder and the investigation into the intelligence leaks.

The most obvious problem is the conflict of interest. It’s doubtful that U.S. Attorney for D.C. Ronald Machen, an Obama appointee, can fairly investigate his own boss (Eric Holder), or his boss’s boss (President Obama) in either the leak cases or the Fast and Furious stonewalling.

But even putting that aside, Machen has now been referred two big, high-profile cases in a matter of weeks, both of which are vital to the public interest. The Washington Post reported last week that Machen already had a full plate, and his staff was overwhelmed with D.C. corruption prosecutions even before the leak case and Holder contempt charge got to his desk:

As if investigating D.C. public corruption wasn’t enough, Machen and his prosecutors were handed another difficult task June 8: spearheading a probe of leaks of classified material to reporters. That assignment came the same day that former D.C. Council Chairman Kwame R. Brown (D) pleaded guilty to federal bank fraud charges; Brown resigned just days earlier when he was charged in federal court by prosecutors who, with FBI agents, began by investigating discrepancies in his 2008 council campaign.

Although overall attrition has held steady, Machen has lost at least a half-dozen experienced and respected supervisors. In recent weeks, at least six prosecutors have said they will leave the 35-lawyer homicide unit.

A federal hiring freeze has made it difficult to replace those prosecutors, and those remaining are beginning to complain of burnout.

Can Machen’s office reasonably be expected to give the new workload the attention it deserves? Can he be trusted to pursue these cases fairly? The answer to both questions, at this point, seems to be no.

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What About the Other CIA Witchhunt?

After three years,  John Durham, the special prosecutor appointed by Eric Holder to investigate the destruction of tapes showing enhanced interrogation techniques employed by CIA officials, has closed the case. As this report notes, this “is the latest example of Justice Department officials’ declining to seek criminal penalties for some of the controversial episodes in the C.I.A.’s now defunct detention and interrogation program.”

But what about the other witchhunt investigation that Obama has ordered, or rather the reinvestigation of CIA officials for use of those enhanced techniques? As I have previously reported, professional prosecutors had already ruled out filing criminal charges, but the Obama team, anxious for its pound of flesh, insisted that Durham reinvestigate these same operatives. Does the termination of the tape case suggest that this investigation, loudly protested by career CIA officials, including Leon Panetta, is going to be shut down as well?

I wouldn’t be so sure. An individual with knowledge of Durham’s investigation (who is also highly critical of the Obama administration’s decision to contravene the decision of career prosecutors) emphasizes that these are “totally separate cases.” He nevertheless observes that from what he has seen, Durham and his team seem “like straight shooters — very thorough, trying to get a full understanding” of the issues.

A former Justice Department official likewise cautions: “I think it would prove too much to read something into the fact that he announced the closing of one investigation without announcing the results of the other. The tapes investigation started in January 2008, while it was expanded by Holder to cover interrogators in August 2009. That’s a big-time gap. With that said, it is not as if Durham was not coming across interrogator behavior in the course of investigating the tape destruction.”

Perhaps the most insightful reaction came from a former high-ranking national security official who was deeply troubled by the administration’s decision to place CIA employees back in legal peril. In response to my question asking him to assess what Durham’s dismissal of the tape case might say about the interrogation inquiry, he replied simply, “Not at all clear. One can hope.”

The decision to set Durham loose on CIA operatives already exonerated under a prior administration was another misbegotten and dangerous idea by the Obami, one of many that signaled to CIA officials that they would be foolhardy not to be risk-averse in their anti-terrorism activities. So, indeed, we should hope that Durham shows himself once again to be a wise prosecutor and shuts down a politically motivated inquest.

After three years,  John Durham, the special prosecutor appointed by Eric Holder to investigate the destruction of tapes showing enhanced interrogation techniques employed by CIA officials, has closed the case. As this report notes, this “is the latest example of Justice Department officials’ declining to seek criminal penalties for some of the controversial episodes in the C.I.A.’s now defunct detention and interrogation program.”

But what about the other witchhunt investigation that Obama has ordered, or rather the reinvestigation of CIA officials for use of those enhanced techniques? As I have previously reported, professional prosecutors had already ruled out filing criminal charges, but the Obama team, anxious for its pound of flesh, insisted that Durham reinvestigate these same operatives. Does the termination of the tape case suggest that this investigation, loudly protested by career CIA officials, including Leon Panetta, is going to be shut down as well?

I wouldn’t be so sure. An individual with knowledge of Durham’s investigation (who is also highly critical of the Obama administration’s decision to contravene the decision of career prosecutors) emphasizes that these are “totally separate cases.” He nevertheless observes that from what he has seen, Durham and his team seem “like straight shooters — very thorough, trying to get a full understanding” of the issues.

A former Justice Department official likewise cautions: “I think it would prove too much to read something into the fact that he announced the closing of one investigation without announcing the results of the other. The tapes investigation started in January 2008, while it was expanded by Holder to cover interrogators in August 2009. That’s a big-time gap. With that said, it is not as if Durham was not coming across interrogator behavior in the course of investigating the tape destruction.”

Perhaps the most insightful reaction came from a former high-ranking national security official who was deeply troubled by the administration’s decision to place CIA employees back in legal peril. In response to my question asking him to assess what Durham’s dismissal of the tape case might say about the interrogation inquiry, he replied simply, “Not at all clear. One can hope.”

The decision to set Durham loose on CIA operatives already exonerated under a prior administration was another misbegotten and dangerous idea by the Obami, one of many that signaled to CIA officials that they would be foolhardy not to be risk-averse in their anti-terrorism activities. So, indeed, we should hope that Durham shows himself once again to be a wise prosecutor and shuts down a politically motivated inquest.

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New Black Panthers — GOP Turns Up the Heat

Republicans on the Hill are turning their sights to the mushrooming New Black Panther Party scandal. Two of the latest developments signal the more aggressive stance from Republicans.

First, Rep. Lamar Smith (one of the few congressmen who has diligently hounded the administration for answers about the dismissal of the voter-intimidation case and for its position on enforcement of the civil rights laws) wrote to the president. As Ranking Chair on the House Judiciary Committee, he is asking for a special prosecutor to be appointed not only to investigate the dismissal of a single case but also to determine whether the Obama Justice Department is operating under a “no lawsuits against minorities” rule.

Then on Friday, in the Senate, the GOP members of the Judiciary Committee — all seven, including Lindsey Graham — sent a letter to Committee Chairman Pat Leahy. They list the relevant facts of the case, and they also make clear there is more at issue than a single case. The senators recap testimony that the assistant attorney general for civil rights, Thomas Perez, may have provided untruthful testimony and that the deputy assistant attorney general for civil rights, Julie Fernandes, said that the Department wouldn’t pursue cases with minority defendants and white victims. They conclude that if the allegations are true, the Obama Justice Department is guilty of “politicization and possible corruption.” They demand a hearing. The kicker is subtle and in the final line: “Given the importance of this oversight matter, we believe that holding a hearing on this issue should take priority over other Committee business.”

Are the Republicans threatening to hold up confirmation hearings? Could filibusters be in the future? There is the Elena Kagan vote and also the hearing to fill the No. 2 slot in Justice. (The controversial James Cole awaits his confirmation hearing.) If the Obama administration wants to move forward on its issues and appointments, the Republicans seem to be implying that the stonewall act of Eric Holder, aided and abetted by the slothful Democratic chairmen, must end. Seems fair, right?

Maybe now the mainstream media will recognize that this story is hardly about a single case, as noxious as it was to forfeit a default judgment against blatant violators of the Voting Rights Act. Face the Nation is scheduled to take a look at the matter today. (I wonder if the guests have been warned not to bring up the network’s yearlong refusal to cover the story.) We will see whether the mainstream media perk up and admit there is, in fact, a scandal of significant proportions that needs to be fully investigated.

The Democrats may be more motivated now than they were a month or a year ago to look into the allegations for two reasons. First, if one or both of the houses flip to Republican control, Rep. Lamar Smith will be Chairman Smith, and Republicans will have subpoena power. Perhaps now is the time for the Obami and House Democrats to make amends with Smith, whose requests and inquiries have been repeatedly ignored. There is nothing quite like a new chairman with an axe to grind. Similarly in the Senate, wouldn’t it be better for the Democrats to have a hearing under the protective eye of Sen. Leahy? It’s a big risk to let things build and to hope that all the polls showing an impending landslide are wrong. They could be facing Chairman Kyl, you know.

Second, Congress is soon to recess. What if — like Rep. Brad Sherman — more Democrats are “ambushed” by constituents demanding answers about the case? (Note to Democratic friends: read up about the case; the voters don’t like it when you say you’ve never heard about something because the New York Times didn’t report on it.) Certainly, if confronted by irate voters, Democrats would prefer to say: “Yes, I’m concerned too about equal enforcement of civil rights laws. We sure are going to have a hearing on that. Now, let’s get back to the real issue in the campaign: George W. Bush.” Well, you get the idea.

Even if the media is in damage-control mode — playing dumb about the wider implications of the case — Republicans have no intention of going along with the charade. As a result, an unseemly scandal is about to get a whole lot more attention. Like it or not, the media may be obliged to follow the story — the whole story.

Republicans on the Hill are turning their sights to the mushrooming New Black Panther Party scandal. Two of the latest developments signal the more aggressive stance from Republicans.

First, Rep. Lamar Smith (one of the few congressmen who has diligently hounded the administration for answers about the dismissal of the voter-intimidation case and for its position on enforcement of the civil rights laws) wrote to the president. As Ranking Chair on the House Judiciary Committee, he is asking for a special prosecutor to be appointed not only to investigate the dismissal of a single case but also to determine whether the Obama Justice Department is operating under a “no lawsuits against minorities” rule.

Then on Friday, in the Senate, the GOP members of the Judiciary Committee — all seven, including Lindsey Graham — sent a letter to Committee Chairman Pat Leahy. They list the relevant facts of the case, and they also make clear there is more at issue than a single case. The senators recap testimony that the assistant attorney general for civil rights, Thomas Perez, may have provided untruthful testimony and that the deputy assistant attorney general for civil rights, Julie Fernandes, said that the Department wouldn’t pursue cases with minority defendants and white victims. They conclude that if the allegations are true, the Obama Justice Department is guilty of “politicization and possible corruption.” They demand a hearing. The kicker is subtle and in the final line: “Given the importance of this oversight matter, we believe that holding a hearing on this issue should take priority over other Committee business.”

Are the Republicans threatening to hold up confirmation hearings? Could filibusters be in the future? There is the Elena Kagan vote and also the hearing to fill the No. 2 slot in Justice. (The controversial James Cole awaits his confirmation hearing.) If the Obama administration wants to move forward on its issues and appointments, the Republicans seem to be implying that the stonewall act of Eric Holder, aided and abetted by the slothful Democratic chairmen, must end. Seems fair, right?

Maybe now the mainstream media will recognize that this story is hardly about a single case, as noxious as it was to forfeit a default judgment against blatant violators of the Voting Rights Act. Face the Nation is scheduled to take a look at the matter today. (I wonder if the guests have been warned not to bring up the network’s yearlong refusal to cover the story.) We will see whether the mainstream media perk up and admit there is, in fact, a scandal of significant proportions that needs to be fully investigated.

The Democrats may be more motivated now than they were a month or a year ago to look into the allegations for two reasons. First, if one or both of the houses flip to Republican control, Rep. Lamar Smith will be Chairman Smith, and Republicans will have subpoena power. Perhaps now is the time for the Obami and House Democrats to make amends with Smith, whose requests and inquiries have been repeatedly ignored. There is nothing quite like a new chairman with an axe to grind. Similarly in the Senate, wouldn’t it be better for the Democrats to have a hearing under the protective eye of Sen. Leahy? It’s a big risk to let things build and to hope that all the polls showing an impending landslide are wrong. They could be facing Chairman Kyl, you know.

Second, Congress is soon to recess. What if — like Rep. Brad Sherman — more Democrats are “ambushed” by constituents demanding answers about the case? (Note to Democratic friends: read up about the case; the voters don’t like it when you say you’ve never heard about something because the New York Times didn’t report on it.) Certainly, if confronted by irate voters, Democrats would prefer to say: “Yes, I’m concerned too about equal enforcement of civil rights laws. We sure are going to have a hearing on that. Now, let’s get back to the real issue in the campaign: George W. Bush.” Well, you get the idea.

Even if the media is in damage-control mode — playing dumb about the wider implications of the case — Republicans have no intention of going along with the charade. As a result, an unseemly scandal is about to get a whole lot more attention. Like it or not, the media may be obliged to follow the story — the whole story.

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Did Thomas Perez Testify Truthfully?

J. Christian Adams, the former Justice Department attorney who was a key member of its New Black Panther litigation team, made a splash when he testified that the Civil Rights Division under Obama is hostile to filing civil rights cases that don’t follow the historic pattern — i.e., a white defendant violating minorities’ rights. (Helpful summaries are found here and here.) It is, if accurate, far more explosive than the dismissal of an isolated case, as egregious as the withdrawal of a default judgment against the New Black Panthers was.

The notion that civil rights laws can’t or shouldn’t be used against a minority defendant who seeks to deprive others of their civil rights is noxious to most Americans. According to Adams’s testimony, however, it is a commonplace at the Justice Department and was articulated by Julie Fernandes, the Deputy Assistant Attorney General for Civil Rights.

Moreover, it raises a question as to whether Thomas Perez was being truthful to Congress and to the U.S. Commission on Civil Rights when he testified under oath that he was unaware of any such sentiments. Before the Commission, Adams testified: “But Mr. Chris Coates and I and [Robert] Popper went and met with him the day before he testified here for about an hour, and we laid out all of our arguments and begged him not to testify inaccurately about the case.” He nevertheless testified that the case was unsupported by the law and the facts, and suggested the lawyers may have violated Rule 11, which provides for sanctions in the event of a frivolous legal action.

But that’s not all. A knowledgeable source tells me that at that same meeting, trial team head Chris Coates, who participated in the meeting by phone, explicitly warned him that there was a deep hostility to race-neutral enforcement of the law and he provided details to Perez. Sitting in the room with Perez were Adams and Popper. Perez had aides who were taking notes in the room. Nevertheless, under oath and before Congress and the Commission, Perez testified that he was unaware of such sentiments. If, indeed, he was briefed and then delivered this testimony, then he misled Congress and the Commission.

Now did he conduct a thorough investigation and find Coates unpersuasive? Well, the testimony before the Commission was the next day and I doubt there was time to commence — let alone complete — such an inquiry. Moreover, he denied having heard about such allegations. If he had been briefed the day before, this was patently untrue.

It is time for Congress to exercise appropriate oversight and get to the bottom of this issue. Moreover, since the Justice Department can’t investigate itself, I don’t see why a special prosecutor isn’t in order.

Now, two additional former DOJ attorneys have come forward to corroborate the hostility toward colorblind enforcement. Their affidavits can be read here. The witnesses are piling up and the stonewall is turning to rubble. We may finally be getting to the reason why Eric Holder’s Justice Department has done everything possible to keep members of the trial team from testifying. Their exposure is much greater than one case.

J. Christian Adams, the former Justice Department attorney who was a key member of its New Black Panther litigation team, made a splash when he testified that the Civil Rights Division under Obama is hostile to filing civil rights cases that don’t follow the historic pattern — i.e., a white defendant violating minorities’ rights. (Helpful summaries are found here and here.) It is, if accurate, far more explosive than the dismissal of an isolated case, as egregious as the withdrawal of a default judgment against the New Black Panthers was.

The notion that civil rights laws can’t or shouldn’t be used against a minority defendant who seeks to deprive others of their civil rights is noxious to most Americans. According to Adams’s testimony, however, it is a commonplace at the Justice Department and was articulated by Julie Fernandes, the Deputy Assistant Attorney General for Civil Rights.

Moreover, it raises a question as to whether Thomas Perez was being truthful to Congress and to the U.S. Commission on Civil Rights when he testified under oath that he was unaware of any such sentiments. Before the Commission, Adams testified: “But Mr. Chris Coates and I and [Robert] Popper went and met with him the day before he testified here for about an hour, and we laid out all of our arguments and begged him not to testify inaccurately about the case.” He nevertheless testified that the case was unsupported by the law and the facts, and suggested the lawyers may have violated Rule 11, which provides for sanctions in the event of a frivolous legal action.

But that’s not all. A knowledgeable source tells me that at that same meeting, trial team head Chris Coates, who participated in the meeting by phone, explicitly warned him that there was a deep hostility to race-neutral enforcement of the law and he provided details to Perez. Sitting in the room with Perez were Adams and Popper. Perez had aides who were taking notes in the room. Nevertheless, under oath and before Congress and the Commission, Perez testified that he was unaware of such sentiments. If, indeed, he was briefed and then delivered this testimony, then he misled Congress and the Commission.

Now did he conduct a thorough investigation and find Coates unpersuasive? Well, the testimony before the Commission was the next day and I doubt there was time to commence — let alone complete — such an inquiry. Moreover, he denied having heard about such allegations. If he had been briefed the day before, this was patently untrue.

It is time for Congress to exercise appropriate oversight and get to the bottom of this issue. Moreover, since the Justice Department can’t investigate itself, I don’t see why a special prosecutor isn’t in order.

Now, two additional former DOJ attorneys have come forward to corroborate the hostility toward colorblind enforcement. Their affidavits can be read here. The witnesses are piling up and the stonewall is turning to rubble. We may finally be getting to the reason why Eric Holder’s Justice Department has done everything possible to keep members of the trial team from testifying. Their exposure is much greater than one case.

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Flotsam and Jetsam

Sigh: “The heads of the Democratic and Republican parties on Sunday criticized controversial comments made by two Senate hopefuls in their own parties, but each stood behind their candidacies [Rand Paul and Richard Blumenthal].” Well, party chairmen are paid to defend the indefensible, I suppose. And really, does any ordinary voter care what Michael Steele and Tim Kaine say?

Aaargh! “‘I was offered a job, and I answered that,’ [Joe] Sestak said. ‘Anything that goes beyond that is for others to talk about.'” He was bribed by the White House to get out of the Senate primary race and isn’t going to talk about it? I think an ethics probe and a special prosecutor are in order. It is a crime, after all, to bribe a candidate.

What??! Marc Ambinder, who, as Mickey Kaus once put it, spins more furiously for Obama than a dreidel, has this to say about the alleged White House offer to Sestak: “In essence, if this White House ascribes to a higher ethical standard, then it might want to agree to some investigation even if it believes there is no legal merit.” Because after all, the administration’s own conclusion about its wrongdoing is basically conclusive, right?

Whoopee! (for Republicans): “Republican Charles Djou won a special congressional election in Hawaii Saturday night, giving the GOP a boost as it attempts to retake the U.S. House in the November elections. … Mr. Djou will become the first Republican to represent Hawaii in 20 years. Hawaii is a traditionally Democratic stronghold that is President Barack Obama’s native state.” Democrats say this doesn’t really matter because the votes were divided by two feuding Democratic candidates. Besides, only special elections that Democrats win are bellwethers.

Yikes! John Kerry is back in Syria sucking up to Bashar al-Assad. And this is no comfort: “Senator Kerry has emerged as one of the primary American interlocutors with the Syrian government.” Yes, that’s part of the problem.

Oooh: “Iran’s parliament speaker earlier Sunday repeated threats that Iran would abandon a nuclear fuel swap plan brokered by Brazil and Turkey if the United States imposes new sanctions on the Islamic state.” So don’t be passing any useless sanctions or the mullahs will reject the meaningless Brazil-Turkey deal. The only thing more absurd (and more dangerous) is Obama’s Iran policy. (Come to think of it, it’s not clear he has one.)

Ouch: “‘The oil is gushing and we’re being lied to by how much oil is gushing … and the administration has now named a commission,’ Cokie Roberts said derisively. ‘Now this is what you do when you really don’t have anything else to do: you name a commission,’ she said. ‘That’s not going to stop the oil.'” Donna Brazile had harsh criticism as well, and when Obama loses Donna Brazile, you know he’s hitting rock bottom.

Awww (subscription required): “The muted conservative response is in marked contrast to the unease among some liberal activists toward [the nomination of Elena] Kagan. Obama, they say, made a ‘safe choice’ that was more appropriate for a Senate with a 52-seat Democratic majority rather than the 59-seat advantage (counting independent Bernie Sanders of Vermont) that the party holds. These disappointed liberals say that Obama, once again, has turned his back on them.”

Thunk! Maureen Dowd writes a column on Richard Blumenthal that’s daft even for her: “‘I think that lies are like wishes,’ said Bella DePaulo, a psychology professor at the University of California at Santa Barbara. … But chronic puffer-uppers can have impressive public service careers.” I don’t have a degree in psychology, but I think lies are like lies.

Sigh: “The heads of the Democratic and Republican parties on Sunday criticized controversial comments made by two Senate hopefuls in their own parties, but each stood behind their candidacies [Rand Paul and Richard Blumenthal].” Well, party chairmen are paid to defend the indefensible, I suppose. And really, does any ordinary voter care what Michael Steele and Tim Kaine say?

Aaargh! “‘I was offered a job, and I answered that,’ [Joe] Sestak said. ‘Anything that goes beyond that is for others to talk about.'” He was bribed by the White House to get out of the Senate primary race and isn’t going to talk about it? I think an ethics probe and a special prosecutor are in order. It is a crime, after all, to bribe a candidate.

What??! Marc Ambinder, who, as Mickey Kaus once put it, spins more furiously for Obama than a dreidel, has this to say about the alleged White House offer to Sestak: “In essence, if this White House ascribes to a higher ethical standard, then it might want to agree to some investigation even if it believes there is no legal merit.” Because after all, the administration’s own conclusion about its wrongdoing is basically conclusive, right?

Whoopee! (for Republicans): “Republican Charles Djou won a special congressional election in Hawaii Saturday night, giving the GOP a boost as it attempts to retake the U.S. House in the November elections. … Mr. Djou will become the first Republican to represent Hawaii in 20 years. Hawaii is a traditionally Democratic stronghold that is President Barack Obama’s native state.” Democrats say this doesn’t really matter because the votes were divided by two feuding Democratic candidates. Besides, only special elections that Democrats win are bellwethers.

Yikes! John Kerry is back in Syria sucking up to Bashar al-Assad. And this is no comfort: “Senator Kerry has emerged as one of the primary American interlocutors with the Syrian government.” Yes, that’s part of the problem.

Oooh: “Iran’s parliament speaker earlier Sunday repeated threats that Iran would abandon a nuclear fuel swap plan brokered by Brazil and Turkey if the United States imposes new sanctions on the Islamic state.” So don’t be passing any useless sanctions or the mullahs will reject the meaningless Brazil-Turkey deal. The only thing more absurd (and more dangerous) is Obama’s Iran policy. (Come to think of it, it’s not clear he has one.)

Ouch: “‘The oil is gushing and we’re being lied to by how much oil is gushing … and the administration has now named a commission,’ Cokie Roberts said derisively. ‘Now this is what you do when you really don’t have anything else to do: you name a commission,’ she said. ‘That’s not going to stop the oil.'” Donna Brazile had harsh criticism as well, and when Obama loses Donna Brazile, you know he’s hitting rock bottom.

Awww (subscription required): “The muted conservative response is in marked contrast to the unease among some liberal activists toward [the nomination of Elena] Kagan. Obama, they say, made a ‘safe choice’ that was more appropriate for a Senate with a 52-seat Democratic majority rather than the 59-seat advantage (counting independent Bernie Sanders of Vermont) that the party holds. These disappointed liberals say that Obama, once again, has turned his back on them.”

Thunk! Maureen Dowd writes a column on Richard Blumenthal that’s daft even for her: “‘I think that lies are like wishes,’ said Bella DePaulo, a psychology professor at the University of California at Santa Barbara. … But chronic puffer-uppers can have impressive public service careers.” I don’t have a degree in psychology, but I think lies are like lies.

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Obama Civil Rights Head Defends Black Panther Dismissal

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

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Flotsam and Jetsam

Because they haven’t beaten this one to death: “To minimize expected losses in next fall’s election, President Barack Obama’s party is testing a line of attack that resurrects George W. Bush as a boogeyman and castigates Republicans as cozy with Wall Street.” I imagine that the GOP will be gleeful if this is the best the Democrats can do.

Kathleen Parker thinks blaming Bush is so 2008: “George W. Bush is officially retired as the fault-guy for the nation’s ills, and Barack Obama owns the game. Whether he wants to or not.”

The CIA is apparently sick of being the fall-guy for the Obami: “‘One day the President is pointing the finger and blaming the intelligence services, saying there is a systemic failure,’ said one agency official. ‘Now we are heroes. The fact is that we are doing everything humanly possible to stay on top of the security situation. The deaths of our operatives shows just how involved we are on the ground.’ But CIA bosses claim they were unfairly blamed at a time the covert government. . .Some CIA officials are angry at being criticised by the White House after Abdulmutallab, 23, was allowed to slip through the security net and board a U.S.-bound flight in Amsterdam despite evidence he was a terror threat.’” And then there is the special prosecutor who is reinvestigating the CIA operatives as well as the decision to take interrogation duties away from them. You can see why they are mad.

Marc Thiessen: “Those who argue that we should not used enhanced techniques even on the KSM’s of the world are effectively arguing from a position of radical pacifism.  They are opposed to coercion no matter what the cost in innocent lives.  We should respect their opinion, they way we respect the right of conscientious objectors to abstain from military service.  But that does not mean we put pacifists in charge of decisions on war and peace.  Same should go for decisions when it comes to interrogation.”

Terrible news: the former Washington Post ombudsperson Deborah Howell, a classy lady, has been killed. R. I. P.

The Obami have apparently convinced themselves that those “crippling sanctions” will make them unpopular with the Iranian people who have been pleading for the U.S. to adopt a policy of regime change: “Sanctions will be a difficult balancing act for the administration, since it acknowledges that three previous rounds of sanctions have failed to deter Iran, and it also wants to avoid angering Iranians protesting in the streets by depriving them of Western goods. That is why the administration is focusing on the Revolutionary Guards, who are increasingly detested by the protesters, and who have built up billions of dollars of business interests in telecommunications, oil and construction.” And we think the Revolutionary Guards can’t figure out how to evade “focused” sanctions? Oy. So many excuses for doing so little. But at least they’ve figured out (when was it exactly?) that the 2007 National Intelligence Estimate was wrong about Iran’s nuclear program.

Remember when liberals used to be funny and artistic? Now they are humorless, while conservatives are the funny and poetic ones.

Marty Peretz notices that liberals are also shy these days: “Joe Klein, who spent a lot of print trying more or less to exonerate Dr. Major Nidal Malik Hasan by dint of his being a nutcase, has been curiously silent about Umar Farouk Abdulmutallab. In fact, there’s been a certain shyness among the whole left-wing blogosphere (and among Democrats, generally) about the skivvies terrorist. There is no place for these journalists to hide and no logic, however dubious, with which they can transfer the guilt to us. And, believe me, if they can’t invent this, there is nothing to invent—nothing.”

Because they haven’t beaten this one to death: “To minimize expected losses in next fall’s election, President Barack Obama’s party is testing a line of attack that resurrects George W. Bush as a boogeyman and castigates Republicans as cozy with Wall Street.” I imagine that the GOP will be gleeful if this is the best the Democrats can do.

Kathleen Parker thinks blaming Bush is so 2008: “George W. Bush is officially retired as the fault-guy for the nation’s ills, and Barack Obama owns the game. Whether he wants to or not.”

The CIA is apparently sick of being the fall-guy for the Obami: “‘One day the President is pointing the finger and blaming the intelligence services, saying there is a systemic failure,’ said one agency official. ‘Now we are heroes. The fact is that we are doing everything humanly possible to stay on top of the security situation. The deaths of our operatives shows just how involved we are on the ground.’ But CIA bosses claim they were unfairly blamed at a time the covert government. . .Some CIA officials are angry at being criticised by the White House after Abdulmutallab, 23, was allowed to slip through the security net and board a U.S.-bound flight in Amsterdam despite evidence he was a terror threat.’” And then there is the special prosecutor who is reinvestigating the CIA operatives as well as the decision to take interrogation duties away from them. You can see why they are mad.

Marc Thiessen: “Those who argue that we should not used enhanced techniques even on the KSM’s of the world are effectively arguing from a position of radical pacifism.  They are opposed to coercion no matter what the cost in innocent lives.  We should respect their opinion, they way we respect the right of conscientious objectors to abstain from military service.  But that does not mean we put pacifists in charge of decisions on war and peace.  Same should go for decisions when it comes to interrogation.”

Terrible news: the former Washington Post ombudsperson Deborah Howell, a classy lady, has been killed. R. I. P.

The Obami have apparently convinced themselves that those “crippling sanctions” will make them unpopular with the Iranian people who have been pleading for the U.S. to adopt a policy of regime change: “Sanctions will be a difficult balancing act for the administration, since it acknowledges that three previous rounds of sanctions have failed to deter Iran, and it also wants to avoid angering Iranians protesting in the streets by depriving them of Western goods. That is why the administration is focusing on the Revolutionary Guards, who are increasingly detested by the protesters, and who have built up billions of dollars of business interests in telecommunications, oil and construction.” And we think the Revolutionary Guards can’t figure out how to evade “focused” sanctions? Oy. So many excuses for doing so little. But at least they’ve figured out (when was it exactly?) that the 2007 National Intelligence Estimate was wrong about Iran’s nuclear program.

Remember when liberals used to be funny and artistic? Now they are humorless, while conservatives are the funny and poetic ones.

Marty Peretz notices that liberals are also shy these days: “Joe Klein, who spent a lot of print trying more or less to exonerate Dr. Major Nidal Malik Hasan by dint of his being a nutcase, has been curiously silent about Umar Farouk Abdulmutallab. In fact, there’s been a certain shyness among the whole left-wing blogosphere (and among Democrats, generally) about the skivvies terrorist. There is no place for these journalists to hide and no logic, however dubious, with which they can transfer the guilt to us. And, believe me, if they can’t invent this, there is nothing to invent—nothing.”

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Who’s in Charge Here?

Karl Rove observes a string of bad-news Friday news dumps by the White House, the latest being the decision to move KSM to a civilian courtroom for trial. He writes:

What we are seeing with the White House’s timing in releasing its decision on KSM and other terrorists is a presidency clinging to campaign tactics that aim to dominate the 24-hour-news cycle. The problem is that ploys that work in a campaign don’t work nearly as well when you’re in charge of the executive branch. Once in office, you have to live with the consequences of a policy decision.

The debate now taking place over trying terrorists in civilian courts is showing this White House that it cannot escape the hard realities that come with making presidential decisions. Not even Friday afternoons can offer sanctuary from dangerous or ill-considered policy choices.

As a preliminary matter, it suggests that Eric Holder’s claim that he did not speak to the president about this is disingenuous. Holder just magically chose a Friday announcement date when the president would be overseas? No, of course not. It insults our intelligence to maintain that the president was a sideline observer and that the rollout was not carefully orchestrated with the White House so as to minimize — however temporarily — the fallout from what is certainly the worst decision of Obama’s presidency.

The see-ma-no-hands gambit is now familiar to those watching Holder’s operation. The same explanation was offered for the decision to name a special prosecutor and declare CIA operatives who employed enhanced interrogation techniques to be on the hot seat once again.

Obama himself played the “Not me!” game yesterday:

In another interview, Obama said he had not tried to tell Attorney General Eric Holder whether the case involving KSM and four other alleged 9/11 plotters should be heard in federal court or before a military tribunal.

“I said to the attorney general, make a decision based on the law,” the president told CNN’s Ed Henry. “We have set up now a military commission system that is greatly reformed and so we can try terrorists in the forum. But I also have great confidence in our Article 3 courts, the courts that have tried hundreds of terrorist suspects who are imprisoned right now in the United States.”

This is preposterous — the White House would have us believe that Holder made this call? “The law” provides for a military commission, so it is no answer to say that “the law” determined this decision.

At the next White House presser or in the next Obama interview, it might be a good idea to ask the president why he, not his attorney general, decided to give KSM a platform in New York to preach his jihadism and put his captors on trial. The president, not Holder, should be asked how he can justify the grief inflicted on 9/11 victims’ families and how he balances the intelligence giveaway that such a trial entails with the PR “credit” we’re supposed to receive. Obama and Holder can spin all they want, but the media — yes, one holds out faint hope on this score — shouldn’t play the patsy and buy into the nonsense that this is all Holder’s doing.

And if Obama sticks to his story? He should then explain why he has delegated one of the most far-reaching and damaging national-security issues of his presidency to someone else. Who’s the president here?

Karl Rove observes a string of bad-news Friday news dumps by the White House, the latest being the decision to move KSM to a civilian courtroom for trial. He writes:

What we are seeing with the White House’s timing in releasing its decision on KSM and other terrorists is a presidency clinging to campaign tactics that aim to dominate the 24-hour-news cycle. The problem is that ploys that work in a campaign don’t work nearly as well when you’re in charge of the executive branch. Once in office, you have to live with the consequences of a policy decision.

The debate now taking place over trying terrorists in civilian courts is showing this White House that it cannot escape the hard realities that come with making presidential decisions. Not even Friday afternoons can offer sanctuary from dangerous or ill-considered policy choices.

As a preliminary matter, it suggests that Eric Holder’s claim that he did not speak to the president about this is disingenuous. Holder just magically chose a Friday announcement date when the president would be overseas? No, of course not. It insults our intelligence to maintain that the president was a sideline observer and that the rollout was not carefully orchestrated with the White House so as to minimize — however temporarily — the fallout from what is certainly the worst decision of Obama’s presidency.

The see-ma-no-hands gambit is now familiar to those watching Holder’s operation. The same explanation was offered for the decision to name a special prosecutor and declare CIA operatives who employed enhanced interrogation techniques to be on the hot seat once again.

Obama himself played the “Not me!” game yesterday:

In another interview, Obama said he had not tried to tell Attorney General Eric Holder whether the case involving KSM and four other alleged 9/11 plotters should be heard in federal court or before a military tribunal.

“I said to the attorney general, make a decision based on the law,” the president told CNN’s Ed Henry. “We have set up now a military commission system that is greatly reformed and so we can try terrorists in the forum. But I also have great confidence in our Article 3 courts, the courts that have tried hundreds of terrorist suspects who are imprisoned right now in the United States.”

This is preposterous — the White House would have us believe that Holder made this call? “The law” provides for a military commission, so it is no answer to say that “the law” determined this decision.

At the next White House presser or in the next Obama interview, it might be a good idea to ask the president why he, not his attorney general, decided to give KSM a platform in New York to preach his jihadism and put his captors on trial. The president, not Holder, should be asked how he can justify the grief inflicted on 9/11 victims’ families and how he balances the intelligence giveaway that such a trial entails with the PR “credit” we’re supposed to receive. Obama and Holder can spin all they want, but the media — yes, one holds out faint hope on this score — shouldn’t play the patsy and buy into the nonsense that this is all Holder’s doing.

And if Obama sticks to his story? He should then explain why he has delegated one of the most far-reaching and damaging national-security issues of his presidency to someone else. Who’s the president here?

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Because Obama Wants Him To

Wanting to know how Eric Holder “become the most destructive member of Barack Obama’s Cabinet,” Michael Gerson recounts:

Holder launched his tenure by showing disdain for the work of career federal prosecutors when it fit his ideological predispositions. In 2004, a task force from the Eastern District of Virginia investigated allegations of misconduct against the CIA and found insufficient evidence of criminal conduct or intent. Holder ignored the views of these respected prosecutors and appointed his own special prosecutor, appeasing a political constituency that wanted the CIA to be hounded and punished. As a result, morale at a front-line agency in the war on terrorism has plunged. What possible reason could a bright, ambitious intelligence professional have to pursue a career in counterterrorism when the attorney general of the United States is stubbornly intent on exposing and undermining his colleagues?

Then he topped it off by shipping five of the 9/11 conspirators for civilian trial “in a circus atmosphere, with an uncertain chain of evidence (gathered on a battlefield), under a cloud of torture allegations that Holder himself has encouraged.” Rightly citing Holder’s rationale (some nonexistent PR benefit in exchange for risks to U.S. national security) as “memorable for its incoherence,” Gerson concludes: “Whatever his initial assurances, Holder does not believe America is at war with terrorists. Even worse, he seems determined to undermine those who do.”

I concur with every word, but let’s get real here. The way Holder got to be the “most destructive” member of the Cabinet is by Obama putting him there — it is the president who has allowed him to make this series of harebrained decisions. Do we really think Holder does all of this over the objections of the White House? Obama is entirely within his rights to call off Holder or fire him if he doesn’t like the war on the CIA and doesn’t want KSM and other terrorists to make a mockery of the U.S. Justice system. He can tell Holder not to make national-security policy by employing lawyers at the Justice Department who used to represent Guantanamo detainees (yes, he’s done that too). Obama could order heads to roll, including Holder’s, for dismissing an egregious case of voter intimidation by the New Black Panther Party (let’s not forget that one). And if Holder refuses? Obama is president and can replace him.

So the proper question is not whether Holder believes we are at war and seeks to undermine those who do, but whether the president does. Based on everything we’ve seen the answer is not reassuring.

Wanting to know how Eric Holder “become the most destructive member of Barack Obama’s Cabinet,” Michael Gerson recounts:

Holder launched his tenure by showing disdain for the work of career federal prosecutors when it fit his ideological predispositions. In 2004, a task force from the Eastern District of Virginia investigated allegations of misconduct against the CIA and found insufficient evidence of criminal conduct or intent. Holder ignored the views of these respected prosecutors and appointed his own special prosecutor, appeasing a political constituency that wanted the CIA to be hounded and punished. As a result, morale at a front-line agency in the war on terrorism has plunged. What possible reason could a bright, ambitious intelligence professional have to pursue a career in counterterrorism when the attorney general of the United States is stubbornly intent on exposing and undermining his colleagues?

Then he topped it off by shipping five of the 9/11 conspirators for civilian trial “in a circus atmosphere, with an uncertain chain of evidence (gathered on a battlefield), under a cloud of torture allegations that Holder himself has encouraged.” Rightly citing Holder’s rationale (some nonexistent PR benefit in exchange for risks to U.S. national security) as “memorable for its incoherence,” Gerson concludes: “Whatever his initial assurances, Holder does not believe America is at war with terrorists. Even worse, he seems determined to undermine those who do.”

I concur with every word, but let’s get real here. The way Holder got to be the “most destructive” member of the Cabinet is by Obama putting him there — it is the president who has allowed him to make this series of harebrained decisions. Do we really think Holder does all of this over the objections of the White House? Obama is entirely within his rights to call off Holder or fire him if he doesn’t like the war on the CIA and doesn’t want KSM and other terrorists to make a mockery of the U.S. Justice system. He can tell Holder not to make national-security policy by employing lawyers at the Justice Department who used to represent Guantanamo detainees (yes, he’s done that too). Obama could order heads to roll, including Holder’s, for dismissing an egregious case of voter intimidation by the New Black Panther Party (let’s not forget that one). And if Holder refuses? Obama is president and can replace him.

So the proper question is not whether Holder believes we are at war and seeks to undermine those who do, but whether the president does. Based on everything we’ve seen the answer is not reassuring.

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The Free Flow of Classified Information Act

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

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The Libby Verdict

I met Scooter Libby once or twice in the early 1990’s, when he held a high-ranking post in the Defense Department. On the last occasion, I had just returned from a visit to North Korea, and I told him of my intuition that Kim Il Sung might unveil a nuclear weapon on his upcoming birthday. I remember Scooter scribbling down a note but not saying a word in response to my—as it turned out, non-prescient—observation.

I haven’t seen Scooter since, but I’ve followed his career over the years and watched his trial closely. I didn’t hear all the evidence the jury heard, which led them to their conclusion that he is guilty of four out of the five counts with which he was charged.

But when one compares what he was indicted for—lying to the FBI and to a grand jury—with what the special prosecutor Patrick Fitzgerald was appointed to investigate—the leak of the name of a CIA officer whose covert status has yet to be established and the disclosure of which may therefore not even have been a crime—one cannot help being appalled that this case ever came to trial. And when one considers that, as we now know, the identity of the real leaker—Richard Armitage—was clear to the special prosecutor Patrick Fitzgerald almost as soon as he was assigned the case, the whole affair, involving the hounding of a public servant working tirelessly to protect the country from a second September 11, takes on another coloration altogether: another case of the wanton criminalization of policy disagreements, another case study of a special prosecutor run amok, a terrible injustice. Let the appeals begin.

I met Scooter Libby once or twice in the early 1990’s, when he held a high-ranking post in the Defense Department. On the last occasion, I had just returned from a visit to North Korea, and I told him of my intuition that Kim Il Sung might unveil a nuclear weapon on his upcoming birthday. I remember Scooter scribbling down a note but not saying a word in response to my—as it turned out, non-prescient—observation.

I haven’t seen Scooter since, but I’ve followed his career over the years and watched his trial closely. I didn’t hear all the evidence the jury heard, which led them to their conclusion that he is guilty of four out of the five counts with which he was charged.

But when one compares what he was indicted for—lying to the FBI and to a grand jury—with what the special prosecutor Patrick Fitzgerald was appointed to investigate—the leak of the name of a CIA officer whose covert status has yet to be established and the disclosure of which may therefore not even have been a crime—one cannot help being appalled that this case ever came to trial. And when one considers that, as we now know, the identity of the real leaker—Richard Armitage—was clear to the special prosecutor Patrick Fitzgerald almost as soon as he was assigned the case, the whole affair, involving the hounding of a public servant working tirelessly to protect the country from a second September 11, takes on another coloration altogether: another case of the wanton criminalization of policy disagreements, another case study of a special prosecutor run amok, a terrible injustice. Let the appeals begin.

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Ball Three

What is the Scooter Libby trial really about?

In announcing the indictment of the vice-presidential aide in October 2005, the special prosecutor Patrick Fitzgerald attempted to make it all perfectly clear, using a baseball analogy:

If you saw a baseball game and you saw a pitcher wind up and throw a fast ball and hit a batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that. And you’d wonder whether or not the person just reared back and decided, “I’ve got bad blood with this batter, he hit two home runs off me, I’m just going to hit him in the head as hard as I can.”

You also might wonder whether or not the pitcher just let go of the ball, or his foot slipped, and he had no idea to throw the ball anywhere near the batter’s head. And there’s a lots of shades of gray in between. You might learn that you wanted to hit the batter in the back, it hit him in the head because he moved; you might want to throw it under his chin but ended up hitting on the head.

And what you’d want to do is have as much information as you could. You’d want to know what happened in the dugout. Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you’d want to know. And then you’d make a decision as to whether this person should be banned from baseball, whether he should be suspended, whether you should do nothing at all and just say, “Hey, the person threw a bad pitch; get over it.”

After nearly a week of testimony the case is not much clearer than this botched analogy, the forensic equivalent of a “wardrobe malfunction.”

The Washington Post described Judith Miller’s testimony yesterday as “potentially damaging” to Libby. And this is surely accurate if one focuses on the word “potentially.” But her testimony was also even more potentially helpful to the defense.

Libby’s lawyers are expected to maintain that his “false” statements to the FBI and to a grand jury were the product of a faulty memory. So far, a number of prosecution witnesses have given testimony that differs significantly from what Libby told FBI investigators and the grand jury. But more importantly they have been shown to have strikingly deficient memories themselves.

Judith Miller had 85 days in the Alexandria jail in which to refresh her recollections about the sequence of events that brought her there. But no sooner was she released and brought before the grand jury, than she was compelled to acknowledge that she had entirely forgotten a critical meeting with Libby in June of 2003. If she could forget such a vital detail, will the jury convict Libby for lying, when the possibility that he simply forgot has been powerfully sketched by Miller and others in the witness parade?

It is possible that Scooter Libby is lying through his catcher’s mask. But my bet is that, if the jury takes seriously the meaning of the words “reasonable doubt,” Patrick Fitzgerald will have been judged to have pitched four balls, and Scooter, now up at bat, will get to walk.

To see key exhibits in the Scooter Libby case, click here.

To see key exhibits in the Baseball Hall of Fame, click here.

What is the Scooter Libby trial really about?

In announcing the indictment of the vice-presidential aide in October 2005, the special prosecutor Patrick Fitzgerald attempted to make it all perfectly clear, using a baseball analogy:

If you saw a baseball game and you saw a pitcher wind up and throw a fast ball and hit a batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that. And you’d wonder whether or not the person just reared back and decided, “I’ve got bad blood with this batter, he hit two home runs off me, I’m just going to hit him in the head as hard as I can.”

You also might wonder whether or not the pitcher just let go of the ball, or his foot slipped, and he had no idea to throw the ball anywhere near the batter’s head. And there’s a lots of shades of gray in between. You might learn that you wanted to hit the batter in the back, it hit him in the head because he moved; you might want to throw it under his chin but ended up hitting on the head.

And what you’d want to do is have as much information as you could. You’d want to know what happened in the dugout. Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you’d want to know. And then you’d make a decision as to whether this person should be banned from baseball, whether he should be suspended, whether you should do nothing at all and just say, “Hey, the person threw a bad pitch; get over it.”

After nearly a week of testimony the case is not much clearer than this botched analogy, the forensic equivalent of a “wardrobe malfunction.”

The Washington Post described Judith Miller’s testimony yesterday as “potentially damaging” to Libby. And this is surely accurate if one focuses on the word “potentially.” But her testimony was also even more potentially helpful to the defense.

Libby’s lawyers are expected to maintain that his “false” statements to the FBI and to a grand jury were the product of a faulty memory. So far, a number of prosecution witnesses have given testimony that differs significantly from what Libby told FBI investigators and the grand jury. But more importantly they have been shown to have strikingly deficient memories themselves.

Judith Miller had 85 days in the Alexandria jail in which to refresh her recollections about the sequence of events that brought her there. But no sooner was she released and brought before the grand jury, than she was compelled to acknowledge that she had entirely forgotten a critical meeting with Libby in June of 2003. If she could forget such a vital detail, will the jury convict Libby for lying, when the possibility that he simply forgot has been powerfully sketched by Miller and others in the witness parade?

It is possible that Scooter Libby is lying through his catcher’s mask. But my bet is that, if the jury takes seriously the meaning of the words “reasonable doubt,” Patrick Fitzgerald will have been judged to have pitched four balls, and Scooter, now up at bat, will get to walk.

To see key exhibits in the Scooter Libby case, click here.

To see key exhibits in the Baseball Hall of Fame, click here.

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