Right Wing Nut House

To those of us on the right who still vigorously support the President in the War on Terror, the Hamdan ruling presents us with a golden opportunity to start repairing the damage our detainee policy at Guantanamo has inflicted upon our constitutional principles as well as our image abroad.

To those on the left who, despite the unambiguous ruling by the Supreme Court in Hamdan that we are indeed in a shooting war with al-Qaeda, but still insist that the War on Terror is some kind of gigantic Rovian plot to win elections, the decision is a godsend. It gives liberals a second chance to prove they are serious about protecting America from her enemies by joining with the President and Republicans in Congress in resolving the legal status of detainees in such a way that satisfies both the demands of justice and our national security.

Camp Delta has become an iconic symbol worldwide of American hypocrisy in the War on Terror. The name “Guantanamo” will go down in history with other notorious prisons such as the French nightmare penitentiary on Devil’s Island and the North Vietnamese disreputable POW camp known as “The Hanoi Hilton.”

Regardless of whether or not Guantanamo matched those two facilities in sheer brutality and horror, the fact remains that the narrative supplied by western media to describe Guantanamo to the rest of the world has made it so. And in propaganda, perception is everything. There are no starving skeletons or daily beatings as there were on Devil’s Island and the Hanoi Hilton. But the brutality that has been confirmed by independent observers, including our own military and the FBI, is real enough and has brought shame to the United States and damaged our reputation as a champion of justice and human rights among friend and foe alike.

These are simply the facts. It does no good to argue that what goes on at Guantanamo doesn’t rise to the level of torture. Not anymore. One of the main findings in Hamdan was that the detainees at Guantanamo - no matter how bloodthirsty and heinous their crimes - are entitled to the protections of the Geneva Convention. This includes being protected against “[o]utrages upon personal dignity, in particular, humiliating and degrading treatment.” This means that many of the relatively mild “stress techniques” of interrogation well documented elsewhere were and are illegal.

And that’s only the half of it. The Hamdan decision also knocked the chocks from underneath the government’s position that it could try Guantanamo detainees using the rubric of military tribunals. While sympathetic to the reasons given by the government for using the tribunals - namely that trying terrorists in open court could endanger the innocent - the Supremes nevertheless firmly ruled that such tribunals violated the Geneva Convention and hence, U.S. law.

The bottom line is that the Supreme Court ruled that the United States government acted illegally and unconstitutionally in the way it has treated detainees at Guantanamo. So the question is no longer one of right or wrong but rather what to do about the mess we have made in Guantanamo.

This mess includes the fact that our government lied to us when they informed the American people that the prisoners at Guantanamo were “the worst of the worst.” The facts contained in the military’s own records simply do not bear that out. And it is clear, at least to this observer, that one of the main reasons the government insists on holding many of these detainees is not the fear that if released they would commit heinous acts of terror but rather because by releasing them now it would prove that the military made many, many tragic mistakes in capturing, interrogating, and holding dozens of innocent men and boys.

An exhaustive examination of the military’s “Combatant Status Review Tribunals” by two National Journal reporters last February revealed this shocking conclusion:

Many of them are not accused of hostilities against the United States or its allies. Most, when captured, were innocent of any terrorist activity, were Taliban foot soldiers at worst, and were often far less than that. And some, perhaps many, are guilty only of being foreigners in Afghanistan or Pakistan at the wrong time. And much of the evidence — even the classified evidence — gathered by the Defense Department against these men is flimsy, second-, third-, fourth- or 12th-hand. It’s based largely on admissions by the detainees themselves or on coerced, or worse, interrogations of their fellow inmates, some of whom have been proved to be liars.

Perhaps most shocking of all is that despite repeated assurances from Administration officials that the Guantanamo detainees were captured “on the battlefield” in Afghanistan, the facts contained in the military’s own records do not support that contention. In fact, it appears that many of the detainees were captured in Pakistan and were handed over to the Americans by:

“…reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability. These locals had strong incentives to tar as terrorists any and all Arabs they could get their hands on… including noncombatant teachers and humanitarian workers. And the Bush administration has apparently made very little effort to corroborate the plausible claims of innocence detailed by many of the men who were handed over….”

How little effort has been made to establish claims of innocence? The Guardian features a story today about one Abdullah Mujahid who the government claims was plotting against the United States. Two years ago, the military invited Mr. Mujahid to prove his innocence by calling witnesses in his defense before a tribunal.

A few months later, the government informed Mujahid that the witnesses could not be found which meant that his incarceration would continue indefinitely. The newspaper however, found three of the witnesses within three days. One was working for President Karzai, advising him on tribal affairs. Another teaches at the National Defense University in Washington, D.C.

The Guantanamo records are replete with examples of such incompetence or deliberate malfeasance, depending on your point of view. And herein lies the root of the quagmire at Guantanamo; our inability to admit we were wrong about some of these people and work to redress the injustice.

Clearly, there are many detainees at Guantanamo who should never see the outside of prison bars again. And now that the Supreme Court has offered guidance on what to do with these terrorists - specifically asking the President to go to Congress to get the legal authority to try them - those of us who are interested in both justice and our nation’s security should wholeheartedly support this effort.

But what can we do to determine the status of hundreds of others whose incarceration is a blot on American jurisprudence and shames our constitution and our most cherished values? Clearly there must be procedures using our civilian courts to weed out the innocent from the dangerous. And Congress can also intervene here by developing guidelines in concert with the Justice Department and the Department of Defense to insure that justice is done and our national security is protected.

One of the major stumbling blocks is the fact that much of the evidence gathered against detainees is of a classified nature. And evidence gathered as a result of interrogation of other prisoners, if released in open court, could endanger the person who supplied that information. For this reason, detainees cannot enjoy all the rights afforded American citizens in similar circumstances. But they should have the right to an attorney, the right to a speedy review of their case, the right to an examination of the evidence by an impartial judge, and perhaps a limited right to face their accuser if possible.

At the very least, the above gives us a basis for action. Congress has been dithering about this issue for more than three years, passing the buck to the Department of Justice and the Defense Department. Now that the Supreme Court has cleared up some of the issues surrounding detainees at Guantanamo, Congress could indeed clear up most of the others by dealing with detainee rights in a forthright manner that could begin to repair some of the damage done to our reputation as a champion of human rights and the rule of law.

We will be at war with International jihadism for many years. Besides winning on the battlefield, it is absolutely essential that we also win the hearts and minds of the hundreds of millions of Muslims who reject the violence and nihilism of the extremists and really do wish to rid themselves of the terrorists. This won’t happen as long as some of our policies reveal us to be hypocrites and worse, little better than the governments that oppress them on a daily basis.

We simply must stand for something better, something that we can be proud of. But as long as our detainee policy continues to show us at our worst, it will be impossible for many to see us at our best.

I understand that many of my conservative friends - and even Arlen Specter, the hypocritical bastard - are in favor of the proposed amendment that the Senate will start debating today on criminalizing the burning of the American flag.

But in a nation born of dissent, it seems to me that passing an amendment that would contradict one of the main things the flag represents is not only wrong but does an injustice to those who fought and died to protect it.

I know I’ll get a lot of flack for that last statement. But how meaningful can a heroes’ death be if we place a limit on what he died for? Must we also pass an amendment saying that this religion or that religion is outlawed? Should we amend the Constitution to prevent the New York Times from publishing all secrets? Perhaps we should have an amendment that outlaws lobbying? Or that limits demonstrations against the government?

We’d never think of amending the Constitution for any of those things. Even the New York Times, arrogant and self righteous though they may be, must be allowed to decide whether or not to publish information that may harm national security. We don’t like it. We believe they did it because, at bottom, they disagree with the government’s contention that we are at war and that publishing secrets gives aid and comfort to the enemy. But in the end, they must not be prevented from making their own judgments in such matters because to limit their decision making also puts prior restraint on their ability to publish. That is de facto censorship and cannot be allowed in a free society.

Living in America ain’t easy. This is a country that re-invents itself every few years, putting enormous strain on people to adapt. But there must be some things in America that should never change. And one of those things is the right to dissent in any way that does not harm another person or their property. Putting restraints on how someone dissents is the same as limiting their ability to disagree. Yes there are better ways to dissent than burning the flag. But who are you or I to tell anyone else that?

Burning the flag is hurtful, stupid, and reveals the dissenter to be more interested in provoking people than in making a statement against the government. But there’s no law against being an idiot. If that were the case, most politicians would be thrown in the slammer. Here’s Arlen Specter supporting the flag burning amendment:

Sen. Arlen Specter, chairman of the Senate Judiciary Committee, compared the measure to Supreme Court decisions banning so-called “fighting words,” slander, libel, obscenity and pornography involving children. As such, he said, it has no “social value.”

“Flag burning is a form of expression that is spiteful or vengeful,” the five-term Pennsylvania Republican said during the debate. “It is designed to hurt. It is not designed to persuade.”

This from a man who has been on the Administration’s case over the NSA intercept program because of his own extraordinarily narrow interpretation of privacy rights. All of a sudden, he wants to radically broaden the definition of “fighting words?”

If we outlawed all political speech that wasn’t meant to persuade, we’d have to tape the mouths shut of every politician in the country, starting with Specter. And how in God’s name did child pornography get into the debate over flag burning? And who said that child porn had any connection whatsoever to the “fighting words” doctrine?

Specter and the Republicans in the Senate are pandering, pure and simple. I don’t mind it so much when they push something like the so called Marriage Amendment that hasn’t a snowball’s chance in hell of passing. That kind of pandering is constitutionally harmless just because it will never pass. (Whether or not the issue is hurtful to gays is another issue entirely). But political posturing in support of this amendment that would limit the way people dissent is a different story. Mucking around with the Constitution for political gain is wrong. I felt the same way about ERA, the balanced budget, and the abortion amendments. Fooling around with the Constitution is deadly serious business which is why it has been amended only 17 times since the Bill of Rights became law.

I think this is the third post I’ve done on this issue and each time received varying rebukes from my readers for believing both flag burning and amending the constitution to criminalize it is wrong.

Hopefully, I won’t have to write another for a long, long time.

UPDATE

The amendment, needing two thirds to pass, fell short of passage by one vote 66-34. Here are the gory details.

Would it have passed 37 state legislatures and made part of the Constitution? That’s something I hope we never have to find out.

Special Prosecutor Patrick Fitzgerald has announced that Karl Rove will not be indicted for his part in L’Affaire de Plame:

The prosecutor in the C.I.A. leak case on Monday advised Karl Rove, the senior White House adviser, that he would not be charged with any wrongdoing, effectively ending the nearly three-year criminal investigation that had at times focused intensely on Mr. Rove.

The decision by the prosecutor, Patrick J. Fitzgerald, announced in a letter to Mr. Rove’s lawyer, Robert D. Luskin, lifted a pall that had hung over Mr. Rove who testified on five occasions to a federal grand jury about his involvement in the disclosure of an intelligence officer’s identity.

(HT: STACLU)

Unfortunately, that “pall” which was lifted from Mr. Rove has descended like the cone of silence over internet fabricator and noted liar Jason Leopold who as recently as last night wrote this for Truthout.org still trying to justify his article last month that stated flatly Mr. Rove would be “indicted within 24 hours.” And what is truly unbelievable is the contrast with how Leopold presents his evidence. Here is Leopold’s article from last night:

Four weeks ago, during the time when we reported that White House political adviser Karl Rove was indicted for crimes related to his role in the leak of covert CIA operative Valerie Plame Wilson, the grand jury empanelled in the case returned an indictment that was filed under seal in US District Court for the District of Columbia under the curious heading of Sealed vs. Sealed.

As of Friday afternoon that indictment, returned by the grand jury the week of May 10th, remains under seal - more than a month after it was handed up by the grand jury.

The case number is “06 cr 128.” On the federal court’s electronic database, “06 cr 128″ is listed along with a succinct summary: “No further information is available.”

We have not seen the contents of the indictment “06 cr 128″. But the fact that this indictment was returned by the grand jury hearing evidence in the CIA leak case on a day that Special Prosecutor Patrick Fitzgerald met with the grand jury raised a number of questions about the identity of the defendant named in the indictment, whether it relates to the leak case, and why it has been under seal for a month under the heading Sealed vs. Sealed.

Now contrast the above caveat-laden article with this piece from last month that had Rove doing the perp walk from his office in the White House straight into the slammer:

Special Prosecutor Patrick Fitzgerald spent more than half a day Friday at the offices of Patton Boggs, the law firm representing Karl Rove.

During the course of that meeting, Fitzgerald served attorneys for former Deputy White House Chief of Staff Karl Rove with an indictment charging the embattled White House official with perjury and lying to investigators related to his role in the CIA leak case, and instructed one of the attorneys to tell Rove that he has 24 business hours to get his affairs in order, high level sources with direct knowledge of the meeting said Saturday morning.

Robert Luskin, Rove’s attorney, did not return a call for comment. Sources said Fitzgerald was in Washington, DC, Friday and met with Luskin for about 15 hours to go over the charges against Rove, which include perjury and lying to investigators about how and when Rove discovered that Valerie Plame Wilson was a covert CIA operative and whether he shared that information with reporters, sources with direct knowledge of the meeting said.

Note how the story has morphed from Fitzgerald actually serving Rove with an indictment to some unknown indictment in an unknown case being handed down by an unknown prosecutor for an unknown crime.

Great reporting, Jason.

It will do no good to point out Leopold’s foibles to our friends on the left who seem to have a curious soft spot for this misanthropic serial fabricator. Maybe it is the fact that he is an admitted drug addict (a state that lasts a lifetime whether one uses drugs or not) or perhaps it is, as Jeff Goldstein points out, that he speaks truth to power and therefore is forgiven his many sins of omission and commission.

Whatever reason the left will not abandon him, I am happy to report that we will indeed have Jason Leopold to kick around some more thus curing conservative bloggers of writers block whenever an article of his makes an appearance. Since Truthout.Org is probably the bottom of the barrel as far as internet publications go, one would expect Leopold to continue trolling the depths of stupidity and loutishness in his quest to see how many prevarications he can get away with before the decent left gives him the permanent heave-ho.

As for the story of Rove’s non-indictment, this development makes one wonder about Fitzgerald’s case against Libby. Will Rove testify against his former aide? And could that have been the price for his reprieve?

I have my own ghosts to expunge here because for the last year I have been predicting that Rove would be indicted. Clarice Feldman at The American Thinker tried knocking some sense into me several times by telling me that Fitzy didn’t have a thing on Rove and that I was making way too much of press coverage of the story.

Clarice was right. I was dead wrong.

I will be following this story today by reading Tom McGuire and Clarice Feldman who I’m sure are busy at the moment gathering their thoughts so that they can tell us “what it all means.” Check back here for updates on this breaking story.

UPDATE: NO ENGLISH LANGUAGE ADJECTIVES TO DESCRIBE THIS KIND OF IRONY

Mark Ash, Executive Director of Truthout.Org penned an article last night that is one of the saddest examples I can remember of an editor standing behind a writer and then being betrayed by the march of events.

Now for what we believe: We believe that federal criminal indictment “06 cr 128″ (Sealed vs. Sealed) is directly related to the Fitzgerald/Plame investigation. That’s based on a single credible source and the information discussed above. We believe that Karl Rove is cooperating with federal investigators, and for that reason Special Counsel Patrick Fitzgerald is not willing to comment on his status. That is based, again, on a single credible source, and background information provided by experts in federal criminal law. We believe that the indictment was returned and filed “on May 10 2006.” Same single credible source, and details from the filing records. We believe that if any of the key facts that we have reported were materially false or inaccurate some statement to that effect would be forthcoming from Fitzgerald’s staff. That is based on the same single credible source.

No mention of the person being indicted was Karl Rove which at least relieves Mr. Ash of the ignominy of being proved wrong less than 24 hours of assuring his readers that the “key facts” of the article written last month by Leopold was accurate.

One has to admire Mr. Ash’s loyalty but at the same time, question his judgment in supporting someone who has made him look like a fool.

UPDATE II: McGUIRE WEIGHS IN

Tom McGuire tells us what it all means and acknowleges his erroneous prognistication regarding Rove’s indictment:

Two quick guesses as to why there was no indictment:

(b) The Armitage angle made a Rove indictment problematic except as a package deal…

And Clarice Feldman emails me with her immediate thoughts:

You might want to simply quote Tom Maguire who’s getting punched around on his own site because he always thought Rove would be indicted. (I bet Fitz wishes he could take back the Libby indictment, tt.) C

He may yet.

And what update would be complete without an update from the man who invented the update…or maybe he just popularized it. Or not:

Did someone here order the crap sandwich?

Actually, I’ll refine my request. Leave your predictions below about which members of the administration they’ll inevitably accuse of being involved in the conspiracy to “silence Fitzgerald.”

Michelle Malkin calls it “Rove Derangement Syndrome” Day. She has some good links as usual with Mark Coffey’s “Top Ten” lefty reactions absolutely priceless.

Check out Pat Curley’s “Twas the Night before Fitzmas.”

Robert Kennedy’s long, exhaustive, investigative piece in Rolling Stone magazine about voting irregularities in Ohio does an enormous service to the cause of making elections in America more free and fair. The article lists about a dozen credible instances where the GOP improperly tried to suppress the vote by purging voter registration rolls, discounting newly registered voters (most from Democratic precincts), highlighting GOP shenanigans on election day at polling places, and even making a good case for some good old fashioned ballot box stuffing in some rural Ohio counties.

That said, Kennedy is on much less firm ground when he tries to sell the notion that the voting machines were rigged, that Secretary of State Blackwell personally oversaw a massive vote fraud operation, that there is anything to the notion that there is proof of fraud in the difference between exit polling and the actual vote counts, that corporations involved in making the voting machines participated in any fraudulent activities, and that a full recount would have changed the eventual outcome.

Overall in fact, this is a jaw-dropping piece of partisan hackery. It might have been helpful if Kennedy had bothered to look into charges of Democratic vote fraud that were also swirling around in Ohio on election day and before. And a helpful overview of charges of Democratic vote fraud in other extremely close states that were lost by the President - specifically Wisconsin, Michigan, and Pennsylvania, three of the most heavily unionized states in the nation and featuring Democratic governors with their hands on the polling machinery - would have given his critique an air of authority and legitimacy.

Instead, Mr. Kennedy decided to mix in the most base of smears directed at a Republican gubernatorial candidate with his fact flakes, thus bringing much of his good work down to the level of the gutter.

This country is in desperate need of electoral reform. Not only do both parties plan and organize disenfranchisement operations, they have developed techniques over the years that have gone far beyond dirty tricks like graveyard voting, ballot box stuffing, and the outright bribery of voters, which are election day traditions in many parts of the nation and have been for almost two hundred years. Kennedy’s article reveals some of the dirty little secrets of our democracy and of our political parties (although again, Kennedy’s beautification of Democrats by not accusing them of any wrongdoing is laughable). The long and short of it is, the system is broke and there is apparently not much that anyone is willing to do about it.

Kennedy’s critique is strongest when detailing GOP efforts to disqualify registered voters, especially voters newly added to the rolls. There is also a good case made that the distribution of voting machines was deliberately manipulated to make likely Democratic voters wait much longer to vote than likely Republican voters. There were also enormous problems with the so-called “provisional ballots” that were supposed to be given to people who either had questionable registrar information or were voting in the wrong precinct.

This last charge was not confined to Ohio as both Democrats and Republicans across the country sought to fiddle with the requirements of the law. The statute in both Democratic and Republican controlled states appeared to be honored in the breach as there were numerous complaints in Wisconsin about Republican voters being disenfranchised the way Democrats were in Ohio (among other outrageous examples of Democratic vote fraud in that state).

Some of the charges against Blackwell are spurious:

To further monkey-wrench the process he was bound by law to safeguard, Blackwell cited an arcane elections regulation to make it harder to register new voters. In a now-infamous decree, Blackwell announced on September 7th — less than a month before the filing deadline — that election officials would process registration forms only if they were printed on eighty-pound unwaxed white paper stock, similar to a typical postcard.

There was very good reason to cite that “arcane” regulation - massive, systematic Democratic voter registration fraud:

The unfortunate fact is that Ohio election authorities experienced an unprecedented number of fraudulent voter registrations and some organizations appear to have been engaged in efforts to facilitate and pay for the submission of fraudulent voter registration forms.

This point was noted by Keith Cunningham, President of the Ohio Association of Election Officials, when he testified about the election in Ohio before the House Administration Committee in March 2005. During his testimony, Cunningham remarked that “disruptive” and “distracting” political activists on the ground in Ohio made it increasingly difficult for elections officials to do their jobs.

Cunningham: “[T]he November 2004 election was probably the single most difficult thing I have ever tried to manage in my life. … For instance, the card we send out to voters that tell them where they’re registered, what your precinct is. I spent the better part of an afternoon arguing with somebody that the type on that card was too small, when it’s the same card we’ve been sending out for some time and it’s the default setting on the printer. My belief is that not everyone in November 2004 was dealing in good faith. And there were people on the ground and present in Ohio who … were attempting to create chaos and confusion in hopes that out of it could come something that could be exploited.” (266)

Part of the “chaos and confusion” referenced by Cunningham stemmed from the thousands of fraudulent voter registrations submitted to elections officials in every corner of Ohio.

This is what happens when you make charges without giving any context to someone’s actions. Blackwell was responding to massive, systematic, planned voter registration fraud. Groups like the NAACP (paying for voter registration with crack cocaine), ACORN (massive voter registration fraud resulting in the arrest and conviction of several of their Ohio employees who were paid $5 for each new voter signed up), Americans Coming together (ACT), and the nation’s oldest purveyor of voter registration fraud, the AFL-CIO all sought to game the system and hand Ohio to the Democrats in a blatantly illegal scheme to place fraudulent or non-existent names on the voter list so that operatives would be able to vote several times. This is a time honored scheme in Democratic states and appears to have taken place in Wisconsin, a state the President lost by a mere 11,000 votes.

I urge you to read this link for a detailed description of what Blackwell had to deal with. Much of what is criticized in Kennedy’s piece could easily be chalked up to Blackwell’s grim determination to make sure that the registration process - already strained to the limit with more than 1.5 million new names - didn’t degenerate into a democratic farce. This concern regarding registration fraud also played a hand in the snafus with provisional ballots although clearly, Republicans failed to abide by the law in many, many cases.

Such lack of context permeates Kennedy’s critique:

In another move certain to add to the traffic jam at the polls, the GOP deployed 3,600 operatives on Election Day to challenge voters in thirty-one counties — most of them in predominantly black and urban areas.(157) Although it was billed as a means to ”ensure that voters are not disenfranchised by fraud,”(158) Republicans knew that the challengers would inevitably create delays for eligible voters. Even Mark Weaver, the GOP’s attorney in Ohio, predicted in late October that the move would ”create chaos, longer lines and frustration.”(159)

The day before the election, Judge Dlott attempted to halt the challengers, ruling that ”there exists an enormous risk of chaos, delay, intimidation and pandemonium inside the polls and in the lines out the doors.” Dlott was also troubled by the placement of Republican challengers: In Hamilton County, fourteen percent of new voters in white areas would be confronted at the polls, compared to ninety-seven percent of new voters in black areas.(160) But when the case was appealed to the Supreme Court on Election Day, Justice John Paul Stevens allowed the challenges to go forward. ”I have faith,” he ruled, ”that the elected officials and numerous election volunteers on the ground will carry out their responsibilities in a way that will enable qualified voters to cast their ballots.”(161)

What? Nothing about the legions of Democratic challengers who were also present? I guess we ought to just put the halo on Democrats in Ohio right now rather than waiting for the Vatican to bestow sainthood.

And in a rerun of issues surrounding the 2004 Florida debacle, Kenned pulls out the same, tired canard about “ballot crawl” - the practice that some voters inadvertently or out of sheer stupidity vote for the wrong person on the punch card ballot:

In addition to spoiling ballots, the punch-card machines also created bizarre miscounts known as ”ballot crawl.” In Cleveland Precinct 4F, a heavily African-American precinct, Constitution Party candidate Michael Peroutka was credited with an impressive forty-one percent of the vote. In Precinct 4N, where Al Gore won ninety-eight percent of the vote in 2000, Libertarian Party candidate Michael Badnarik was credited with thirty-three percent of the vote. Badnarik and Peroutka also picked up a sizable portion of the vote in precincts across Cleveland — 11M, 3B, 8G, 8I, 3I.(178) ”It appears that hundreds, if not thousands, of votes intended to be cast for Senator Kerry were recorded as being for a third-party candidate,” the Conyers report concludes.(179)

But it’s not just third-party candidates: Ballot crawl in Cleveland also shifted votes from Kerry to Bush. In Precinct 13B, where Bush received only six votes in 2000, he was credited with twenty percent of the total in 2004. Same story in 9P, where Bush recorded eighty-seven votes in 2004, compared to his grand total of one in 2000.(180)

This is the “idiot factor” at work and there is little to be done about it. The fact that it happens in precincts where people are less educated:

In an attempt to bring illiteracy to the attention of the American people, the U.S. Department of Education pointed out a decade ago that an alarming 47 million American adults were functionally or marginally illiterate. Arguably, little meaningful progress has been made in the fight to reduce illiteracy in the most affluent nation in the world.

A 2001 Newsweek article pointed out that an astonishing 47 percent of Detroit, Mich. residents, or almost one-out-of-two adults in the predominately African-American and urban city were functionally illiterate. By way of comparison, only 6.7 percent of citizens in Vietnam are functionally illiterate.

“Ballot crawl” is a problem of reading, not fraud. This is another dirty little secret of American politics - a sizable minority of people (black and white) are unable to function in our democracy as a result of their being marginally or functionally illiterate. I don’t see Kennedy or Conyers advocating doing anything about it either when they attempt to intimate fraud where remedial reading classes are called for.

Kennedy really jumps the shark when trying to tie the idea of massive vote stealing by the GOP to the skewed exit polls. Ed Morrisey does an excellent job debunking this canard:

News flash: mathematics is an exact science. Polling isn’t, and for at least one basic reason — you can’t force people to participate. The only people answering exit polls are those inclined to share their opinions. It also relies on the skill, integrity, and execution of the actual polltakers, many of whom are hired with little training. Moreover, reporting results in the middle of the sample almost always guarantees bad conclusions.

And interestingly enough, that’s exactly what two research firms looking into the exit poll debacle found:

Indeed they did. And, as I pointed out on election night, the high turnout was playing havoc with the computer models anyway:

A word about exit polls…they take a couple of dozen “key” precincts and average turnout, party reliability, and a few other mundane factors to project a winner. The big turnout here COULD be skewing the computer models and not giving confidence to the networks.

Indeed, that is what happened. An increase of almost 17 million Republicans offset an increase of 15 million Democrats. Rove won the numbers game and Democrats still can’t believe it. And the forecaster’s models broke down as a result of the unpredictability in the increase in voters.

Any notion that the exit polls were going to reveal who won can safely be put to rest by the projected results in these states:

But Kerry winning by 16 in PA? Up 15 in MN? Kerry by 17 in NH? These numbers aren’t just wrong, they’re numbers taken from some kind of weird parallel universe where bloggers don’t exist! How could they have gotten it so wrong?

Not to mention the poll’s split of 59% women and 41% men. Did anyone bother studying that anomaly?

Those exit polls also showed Kerry winning North Carolina and Arizona - two states where there are no charges of vote fraud and which the President carried comfortably. I wonder if Mr. Kennedy would be kind enough to explain that?

In summary, Kennedy should have applied Occam’s Razor to his Exit Poll theory; given multiple explanations for the same outcome, the simplest is probably true. And it’s a helluva lot easier to say that the exit polls were wrong rather than positing the notion of massive, nationwide vote fraud.

Finally, Kennedy raises legitimate questions about the recount of the vote by the state. There apparently were many irregularities in following established procedures and the law for which Mr. Blackwell should be criticized. But would a recount really have given the state and therefore the election to Kerry? The candidate himself didn’t think so and was advised I’m sure by the most knowledgeable and savvy pols in his party. Besides that, it would have been asking too much to expect the President’s lead of nearly 128,000 votes to disappear entirely in a statewide recount. Such an eventuality would have no precedence in American history which is why Kerry probably conceded in the first place.

If I sound dismissive of most of Kennedy’s article, I don’t mean to. As I pointed out, he makes several troubling and valid points about what happened before and after election day in Ohio. Overall, however, his criticisms ring hollow due to his total disregard for Democratic tomfoolery - especially the blatant disenfranchisement campaign carried out against overseas citizens (among many other transgressions) in next door Pennsylvania by Governor Ed Rendell - a state where Kerry’s margin of victory was smaller than Bush’s in Ohio.

What I applaud Mr. Kennedy for is in bringing these issues out into the open for discussion. I have no idea how to solve these problems - I will leave solutions to others. But there is no doubt in my mind that the problem of election and registration fraud is getting worse and threatens our entire democratic system. Best heed the calls for reform now before people lose faith in our system of government entirely.

UPDATE

The Editors make some interesting points about the article while taking some righty bloggers to task for inconsistency. Check out some of the comments as well - some of them still don’t get the fact that the exit polls were so far off thanks to methodology, not conspiracy.

Kim Priestap:

The Democrats just can’t accept that they lost in 2000 and 2004. As far as they are concerned, power is their right, their entitlement. Therefore, as they see it, Democrats don’t lose elections. The elections are stolen from them, which is why Kennedy puts all his eggs in his the-exit-polls-were-accurate basket. Now their target is Secretary Blackwell. And it appears that no smear is low enough for them.

I would say there is a lot of truth in that but in RFK’s case, I think he did raise some legitimate issues.

UPDATE II 6/3

James Joyner does a first class job debunking many of Kennedy’s theories and links to a Salon article that also criticizes Mr. Kennedy’s fact flakes.

A decent critique of the Ohio vote in 2004 would have included the intense scrambling for new voters that caused the Democrats to step over the line of legality and the Republicans to respond by trying to suppress some of the registrations. Again, Blackwell was in an impossible position but, as one of my non-partisan commenters pointed out, it is ludicrous to have the state Chairman of one party’s nominee in charge of seeing that a fair vote is conducted. The appearance of impropriety is too great to give much confidence to the people that nothing underhanded is going on.

Tristero also notes the Salon article and walks back a little from his flat statement that the 2004 election was stolen. He believes Kennedy should acknowledge his mistakes and apologize.

The last forecast I saw for hell did not show any cooling trends in the near future.

UPDATE: 6/7

Readers who have come here via The Poorman Institute must be a little confused. I’m sure they were expecting to read a piece that tries to whitewash Republican malfeasance during the election, when in fact I praise Mr. Kennedy for bringing many of these issues - including the deliberate disenfranchisement of Democratic voters - into the light.

No, the Editors did not direct you to the wrong link. And no, I will not descend to the level of the barnyard to point out that whoever wrote that post did not read much of what I had to say and further, did not give even a hint that both sides were doing their best to supress the other’s vote in Ohio on election day.

To say otherwise is moronic…or is it “moranic?”

Chicago, the birthplace of Sears Roebuck, Montgomery Wards, Marshall Fields, and a host of other retail department or “Big Box” stores is considering a law whose effect would be to put a great big sign up at the city limits disinviting big retailers from doing any more business in “The City That Works.”

The law - currently backed by 33 of the 50 members of the Moscow…er, Chicago City Council - would require stores that have at least 75,000 square feet and $1 Billion in annual sales to pay employees $10 per hour plus $3 an hour in benefits.

“This is an effort to try to preserve the middle class,” said Joe Moore, an alderman from the North Side who sponsored the measure. Mr. Moore called the notion that it would drive retailers out of the city “hogwash.”

Mr. Moore is probably correct. The idea that retailers, already doing business in Chicago as a result of the sweetheart deals that lured them here, would leave is wrong. But what retailer in their right mind would open another store in Chicago, having to pay their employees approximately $3 per hour more in hourly wages plus another $3 an hour in mandated benefits than they would have to pay a couple of miles down the road?

David Vite, president and chief executive of the Illinois Retail Merchants Association, tried to inject some sanity into the discussion:

[H]e thought the state would block such an ordinance and that it seemed unconstitutional because it would discriminate against some businesses. “To suggest that someone who is a janitor in a retail store should get paid more than a janitor at a bank doesn’t make any sense,” Mr. Vite said.

C’mon, David! This is the Chicago City Council we’re talking about here! Who said “making sense” had something to do with anything that august, albeit laughably corrupt body has ever done. Especially since the originators of this entire cockamamie scheme - lawyers for something called The Brennan Center for Justice at the NYU School of Law - see nothing wrong with imposing a little economic Sharia law on high profile businesses who have already received enormous tax breaks and other goodies from this same City Council for opening stores in the first place.

But Jennifer Sung, a lawyer with the Brennan Center for Justice at New York University School of Law, which helped draft the proposal, said the measure would withstand challenges.

Ms. Sung said courts had ruled that distinctions could be made among industries if there was a rational basis for doing so. She also said that Illinois had granted local governments broad powers to pass regulations to promote a city’s health and welfare.

Similar legislation has been introduced in Washington, D.C., and discussed in New Jersey. Lawmakers in Maryland; Suffolk County, N.Y.; and New York City have passed laws requiring certain large employers to provide health care benefits for workers, but none of those laws have a wage component.

It’s no secret that in order to get most of these big box retailers to build and open their doors in many areas of the city, the City Council granted generous tax breaks and other sweeteners like infrastructure improvements, all so that the thousands of jobs created by these employers could be filled by city residents. How would it look if Wal-Mart up and abandoned the city as a result of being told how much it has to pay its employees?

“Don’t let me be the experiment,” said Emma Mitts, the alderwoman in the poor and mainly African-American neighborhood of Austin on the West Side, where the city’s first Wal-Mart is scheduled to open this year. “Not at a time when my community needs these jobs so badly.”

Wal-Mart has apparently assured the city that it plans to go ahead with the store opening regardless of what the wage situation might be.

But the shortsightedness of this proposal can be found not only in how it will affect the future of business development in Chicago, but in how it will affect the buying habits of the big retailers who already are purchasing most of their inventories from other countries. Wages are one of the only costs a retailer can control. By taking that decision out of the company’s hands and placing it in a governmental body, you force the retailer to cut costs elsewhere in order to maintain the razor thin profit margin at the store level that allows it to remain open. And where you cut those costs is in inventory - cheaper and less of it. Cheaper inventory usually means cutting off American suppliers and buying overseas thus resulting in a further erosion of our industrial base.

The debate over a “working wage” and a “living wage” will eventually be settled in favor of the worker as these things usually are in America. The question will be after that happens is how many jobs there will be to fill those “living wage” positions? Unless there is a concurrent requirement that company’s maintain the size of their work force as well as paying a “living wage,” there will be nothing to prevent employers from simply reducing their work force in order to maintain profitability.

The result - fewer jobs, a further deterioration in customer service at these stores, and the continued decline of the “Made in America” brand.

But hey! If it “preserves the middle class” (or what’s left of it), why not go for it?

It appears that board members from School District 128 in nearby Lake County, Illinois need to attend remedial education classes in civics. They were apparently fast asleep during their high school class that dealt with the United States Constitution and the First Amendment:

In a move that has drawn national attention to this Lake County school district, the Community High School District 128 board unanimously passed rules changes Monday night that will hold students accountable for what they post on blogs and social-networking Web sites.

For Libertyville and Vernon Hills High Schools, the changes will mean that all students participating in extracurricular activities, including athletic teams, fine arts groups and school clubs, will have to sign a pledge agreeing that evidence of “illegal or inappropriate” behavior posted on the Internet could be grounds for disciplinary action.

[snip]

Associate Supt. Prentiss Lea said the changes are part of an effort to get the district community more knowledgeable about the growing Internet blog phenomenon and more aware of the pitfalls of such sites as MySpace.com.

“By adding the blog sites [to the student codes of conduct], we wanted to raise discussions on the issue,” he said. “We have taken the first steps to starting that conversation.”

What would constitute “illegal or inappropriate” blog behavior?

In the pledge, which both students and their parents must sign, the students agree that they won’t use alcohol, tobacco or drugs or “exhibit gross misconduct or behavior/citizenship that is considered detrimental to his/her team or school.”

The code of conduct states that “maintaining or being identified on a blog site which depicts illegal or inappropriate behavior will be considered a violation of this code.”

Now if I were the suspicious sort, I’d take the preceding to mean that if I start calling my American Lit teacher a “slut” or my biology teacher “a prick” (or, heaven forbid, refer to the school board itself as “a bunch of dried up old peacocks”) on my blog, anyone who doesn’t much like it can report me to the Blog Police and I can be disciplined for it.

Tom Paine, call you office.

You might think that parents would be up in arms over this violation of their rights to raise their children the way they see fit. After all, if one assumes that the student is writing for the blog off campus and not during school hours, one could ask what in the wide, wide, world of sports are school authorities doing by making it their business to monitor what students do on their own time?

The answer is that only one parent saw fit to stand up for their rights and the rights of their children:

Lake Bluff resident Mary Greenberg, the only person to speak during the public comment period, told officials that the district is overstepping its bounds.

As parents, “we have to watch what they’re doing,” said Greenberg, who has a son at Libertyville High. “I don’t think they need to police what students are doing online. That’s my job.”

Indeed, I can just see my high school trying to do something like this when I was a kid. My mother, God bless her, would have marched into Father Render’s office and told him (in a very nice way, he being a priest and all and my mother a devout Catholic) to stuff it someplace where the sun don’t shine, that she and my father were perfectly capable of “policing” what their children did and that they didn’t need any help from a bunch of busybodies.

And I can also guess the reaction from me and my classmates to this free speech challenge; a massive outbreak of blogs. We would have made sure that every kid in school had a blog and was posting the most outrageous stuff we could find. Not dirty or nasty content, but I can guarantee we would have skewered every teacher, every administrator, and every board member within earshot over this clear intrusion into the private life of students.

As a matter of fact, some of my classmates had a brush with something similar when I was a senior. I was peripherally involved in the publication of a mimeographed “underground” newspaper that was written off campus after school hours but was extraordinarily revolutionary. Some of the things we advocated shook the school to its foundations:

1. Allow for the length of a students hair to touch the collar of the shirt.
2. Elimination of the requirement to wear ties.
3. An end to corporal punishment
4. Allow on-campus smoking
5. Bring anti-war speakers in as guest lecturers

We also took the opportunity to portray some teachers and administrators in a most unflattering light. Not going into details, about all I’ll say is that with a school full of priests and brothers, the sexual innuendo directed at some teachers was something you wouldn’t see in the student newspaper for which most of us wrote.

The “newspaper” had a short run indeed - but not because the school authorities did anything about it. Rather, as typical teenagers, we realized the time we spent trying to come up with inventive ways to insult our teachers could be better spent chasing after typical teenage girls (who were mightily impressed with our efforts to “speak truth to power” let me tell you).

This is so clearly an invasion of privacy that I wonder why the outcry against it hasn’t been more vigorous. I guess it’s just one more sign that parents today may be more willing to let outsiders help raise their kids than our parents were when we were that age.

Maybe it does take a village…

UPDATE

Now another school board is ready to expel a high school student who posted his on line criticisms on a blog:

The student was suspended from school earlier this month after posting a letter online criticizing the discipline of another student, Buck said. He also posted a letter to school administrators saying his opinions were being stifled and that he was being bullied into removing information on his blog.

While he was suspended, the student’s parents received a letter saying the school district is considering expelling him, Buck said.

Is there another side to this story. Well…sorta:

In a written statement, officials said they don’t monitor student Web sites or look up postings unless they create a disturbance at school.

“The district respects the 1st Amendment rights of our students, but not all words can be categorized as protected speech.”

In other words:

You’re free to speak your mind, my friend
As long as you agree with me
Don’t criticize the fatherland
Or those who shape your destiny ‘
Cause if you do,
You’ll lose your job,
your mind and all the friends you knew.
We’ll send out all our Boys in Blue.
They’ll find a way to silence you.”

John Kay, call your office.

Trying to have any kind of a conversation with a liberal over the revelation today that a government insider informed ABC News reporters that the government was “tracking” their phone numbers is an absolute impossibility. They are in hysterics. They are bursting blood vessels, trying to outdo each other in coming up with adjectives to describe their outrage. Or, taking an opposite tack, they are assuring us that they knew it all along - Bush=Hitler.

They may be right.

Then again, they may be full of crap. The fact is, WE DON’T KNOW. And I know how hard it is for the lefties to admit to those three little words but if they were actually serious about discussing the limits of federal power (as I will attempt to do in this post), they would admit the following:

1. WE DON”T KNOW many of the technical details of any of the NSA programs revealed to date.

2. WE DON’T KNOW if any of those programs are illegal or violate the Constitution. We can guess. We can extrapolate from known facts. But until the actual details of HOW the programs work are released, only fools, little children, and liberals proclaim them to be beyond the pale.

3. WE DON’T KNOW if these latest revelations are true.

4. WE DON’T KNOW if legal warrants were obtained in furtherance of an investigation into the leaking of classified information. Not “politically embarrassing or “anti-Bush” information but classified information. You can spin it all you want to my lefty friends, but there are statutes on the books about giving that information to anyone - including reporters - with stiff penalties involved including jail time.

ABC’s outing of the names of the east European countries where the CIA’s prisons were located did so little damage to Bush politically but hugely damaged our foreign policy in ways that are shocking to contemplate. So much for the idiocy that going after the leakers in this case was due to the embarrassment caused the Administration. The reason for the leak is because some unelected, self-important lickspittle of a bureaucrat disagreed with the policy . It’s not about embarrassment or revenge; it’s about catching a criminal.

And anyone who can’t tell the difference between leaking parts of an NIE (that were in the process of being declassified anyway) and leaking information that causes enormous problems to allies who went way out on a limb to help us in fighting the War on Terror, is an ignoramus.

All this being said, what they hell is the government doing “tracking” the calls of newspeople?

Spook86:

The MSM will scream long and loud about this one, but let’s keep things in perspective. Under existing federal statutes, intelligence officials who divulge sensitive information to the press are likely in violation of the law. The unauthorized leak of such data results in a referral from the intelligence agency to the Justice Department, which launches a criminal probe. Federal prosecutors then have the right to gather and subpoena evidence in support of that effort, including phone records. If authorities discover a series of calls between the office phone or cell phone of an intelligence officer and Brian Ross of ABC News, well, that could certainly be relevant in identifying and prosecuting leakers.

But the phone records of reporters are protected:

In New York Times Co. v. Gonzales, 382 F.Supp.2d 457 (S.D.N.Y. 2005), the New York Times sought a declaratory judgment to protect the telephone records of two of its reporters, Judith Miller and Philip Shenon. Miller and Shenon had written articles in the aftermath of September 11th detailing how the government planned to block assets and search the offices of two Islamic charities.

Patrick Fitzgerald wanted to know who leaked this information. He argued that Miller and Shenon’s reporting tipped off the charities to the searches and increased the likelihood that evidence and assets were destroyed or concealed. As part of his investigation into the leak, he requested that Miller and Shenon voluntarily produce their phone records. They refused and eventually filed the lawsuit to determine whether their phone records were protected.

Judge Sweet ruled that indeed the phone records in that case were “protected by the qualified reporters’ privilege for confidential sources, which exists pursuant to the First Amendment and federal common law.” The government in that case was unable to overcome that privilege, so it could not have access to the phone records.

Does this mean that their phone conversations are protected? Their “phone records” (which should include telephone numbers of the type stored in the NSA telephone surveillance database)? Or is it monitoring of a sort of which we are currently unaware?

WE DON’T KNOW.

And neither does ABC News:

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

In short, the tens of thousands of words already written by lefty bloggers (and righties who have felt compelled to respond) may be a big waste of time.

ALL OF THIS MAY HAVE ABSOLUTELY NOTHING TO DO WITH THE NSA!

If it is a legal, authorized monitoring by the Department of Justice that is part of an ongoing criminal investigation into the illegal leaking of classified data, then no one has anything much to complain about.

However…

If it is an attempt by the Bush Administration to use the tools of data mining and the extraordinarily powerful technical collection apparatus of the NSA to spy on reporters (and political opponents), I daresay that the President would be in danger from many Republicans of having them fulfill the wildest dreams of the netnuts and agitate for his impeachment and removal from office.

Myself included.

There are limits to the power of the Federal government. There must be. “We are at war” may cover many, many situations that the civil liberty absolutists and Bush deranged leftists may find problematic but can be justified under the general rubric of “national security.” But using that excuse to harass journalists or intimidate political opponents is so far beyond the pale, so UNAMERICAN that I feel a little embarrassed even having to mention it. It should be as “self evident” as the truths found in the Declaration of Independence - that we have a right to life, liberty, and the pursuit of happiness; none of these is possible without some guarantee that opposition to government policies will not lead to retaliation by the government itself.

This is not to say that I as an individual American citizen can’t call you a traitor or a treasonous lout if I disagree with you (something I rarely do). But it does mean that simply opposing government policies or trying to report what a journalist sees as the “truth” (subjective though that may be) should not bring the heavy hand of government down on the critic or the newsperson.

And if this is what the Bush Administration has been up to with the various NSA programs then the President will be able to look fondly back on the day when his support was in the low 30’s. And he will have presided over a political debacle as horrendous as the elections of 1974-76 when the Democratic congressional “Watergate babies” - all 72 of them - rolled into Congress and nearly destroyed the country.

There is no reason to call for an investigation - yet. But I am a little more amendable to Arlen Specter’s ideas about finding out some additional details on these programs including the Senator trying to get a better idea of exactly who they are targeting.

In the meantime, some words of wisdom from Josh Marshall:

I think part of the issue for many people on the administration’s various forms of surveillance is not just that some of activities seem to be illegal or unconstitutional on their face. I think many people are probably willing to be open-minded, for better or worse, on pushing the constitutional envelope. But given the people in charge of the executive branch today, you just can’t have any confidence that these tools will be restricted to targeting terrorists. Start grabbing up phone records to data-mine for terrorists and then the tools are just too tempting for your leak investigations. Once you do that, why not just keep an eye on your critics too? After all, they’re the ones most likely to get the leaks, right? So, same difference. The folks around the president don’t recognize any real distinctions among those they consider enemies. So we’d be foolish to think they wouldn’t bring these tools to bear on all of them. Once you set aside the law as your guide for action and view the president’s will as a source of legitimacy in itself, then everything becomes possible and justifiable.

I would take issue with Mr. Marshall’s blanket characterization of “the folks around the President” not recognizing any distinctions “among those they consider enemies.” But otherwise, his analysis should be taken to heart.

Just what are they up to?

UPDATE

Glad to see I’m not the only one on the right troubled by this.

Mark Coffey:

This doesn’t change my stand on the surveillance program or the phone database. It may (MAY, I stress) be an abuse of an otherwise useful tool. It’s important to note that we don’t have any proof for Ross’s allegations.

I’m troubled by the allegation, and I’m troubled by the leaks, and I’m troubled by just about everything associated with this entire subject. More than ever, I stand by my call for a new regulatory surveillance framework…

UPDATE II

Here is a rather cryptic update from ABC News:

The FBI acknowledged late Monday that it is increasingly seeking reporters’ phone records in leak investigations.

“It used to be very hard and complicated to do this, but it no longer is in the Bush administration,” said a senior federal official.

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.

The official said our blotter item was wrong to suggest that ABC News phone calls were being “tracked.”

“Think of it more as backtracking,” said a senior federal official.

“Backtracking” would seem to indicate something much less intrusive and less alarming; they would already have a suspect’s phone records that showed the ABC News phone number.

The FBI released a statement that sort of confirms that:

In a statement, the FBI press office said its leak investigations begin with the examination of government phone records.

“The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information,” the statement said.

Officials say that means that phone records of reporters will be sought if government records are not sufficient.

In short, the government is not specifically targeting news organizations unless they have probable cause gleaned through a legal search of a suspect’s phone records. That would seem to be pretty standard law enforcement practice and no cause for alarm.

Then again, still, WE DON’T KNOW.

There are apparently no limits to which the cadre of leakers who are working in our intelligence agencies will go to undermine legitimate national security interests in furtherance of their own, private agendas. The revelations in today’s USA Today about the massive collection of telephone numbers by the NSA - not eavesdropping on calls, not gathering people’s names or addresses - was leaked solely to discredit General Michael Hayden and derail his nomination for Director of the Central Intelligence Agency.

The news that the NSA has information on billions of phone calls made by US citizens since 9/11 should not surprise anyone who has been following the NSA intercept program closely. Which is why lefties are going absolutely ballistic:

John Aravosis:

The phone companies were NOT required to turn over our records - Qwest refused - but AT&T, Verizon and BellSouth gave the Mein Kampf salute. Pigs.

I’m going to say it again. Encrypt your emails NOW:

And I might add…don’t forget to adjust your tinfoil hat, LOON.

Booman Tribune:

I’m not even going to pretend that I’m capable of digesting this and spitting out a rational response. A database of every call ever made? There really are no words. I don’t quite know when it was that we lost our way, though I doubt that it began when the worst president ever took office. No, the desire and the effort to subvert the rights of America’s citizens has manifested itself throughout our nation’s history, though the technology to do so on such a massive scale is relatively new. What the Worst President Ever has given us, is an executive branch which, through its actions, has demonstrated utter contempt for our nation, its citizens, our constitution and the basic morality which compels most of us, from a very early age, to try to speak honestly and act in the best interest of those around us. This is nothing but bad faith and contempt as far as the eye can see.

Um…yeah.

Matt Stoller blames big business:

Qwest refused to help? And Verizon and AT&T (which bought Bellsouth) acted as nice little sycophants? Wow. I always hated Verizon because of their customer service, and AT&T is run by a megalomaniac named Ed Whitacre who likes to destroy trees in his spare time. But I still assumed that cooperation with the government was mandatory. It’s not. These companies are aiding and abetting the NSA in illegal activity. And not only are they aiding and abetting the NSA, they are possibly engaging in illegal corporate behavior. That at least is how Qwest is reading the law.

I say we should nationalize the Telecoms!

Mcjoan from Kos:

Obviously, they’re fighting terror. Because every single American might just be participating in terrorism. So they really need to keep track of all of our phone calls. It’s obvious, right? Obvious, but not particularly legal, though since when has that stopped BushCo?

At least there are a few saner heads on the left. Kevin Drum:

The rules for collecting data about phone calls are different from the rules about listening in on the content of phone calls, so I don’t know what the legal situation here is. However, although most domestic carriers cooperated with the NSA, one of them didn’t: Qwest.

Mark Kleiman:

So now we know about the even nastier program that made BushCo so determined to cover up the warrantless wiretaps. The NSA has been compiling a master database of all telephone calls made in the United States: not the content, but who called whom and when.

Still, I don’t think the voters are going to hold still for it. Not with a President the country already distrusts.

I think Mark underestimates the tolerance by voters for measures like this. While I think a case can be made on constitutional grounds that if argued correctly before SCOTUS could result in a ruling that the NSA intercept program was illegal (a very close call either way), I don’t think this aspect of data collection by the NSA even approaches the danger zone, a point made in the article in USA Today (not anywhere near the lead of course):

The government is collecting “external” data on domestic phone calls but is not intercepting “internals,” a term for the actual content of the communication, according to a U.S. intelligence official familiar with the program. This kind of data collection from phone companies is not uncommon; it’s been done before, though never on this large a scale, the official said. The data are used for “social network analysis,” the official said, meaning to study how terrorist networks contact each other and how they are tied together.

FISA doesn’t even enter into the discussion of whether the program is legal:

Paul Butler, a former U.S. prosecutor who specialized in terrorism crimes, said FISA approval generally isn’t necessary for government data-mining operations. “FISA does not prohibit the government from doing data mining,” said Butler, now a partner with the law firm Akin Gump Strauss Hauer & Feld in Washington, D.C.

The caveat, he said, is that “personal identifiers” — such as names, Social Security numbers and street addresses — can’t be included as part of the search. “That requires an additional level of probable cause,” he said.

Since the only thing being collected are telephone numbers, it is doubtful that what the NSA is doing here even constitutes a “search” as it would be defined under the 4th Amendment.

Exactly what the NSA is doing with the records of billions of phone calls isn’t exactly clear according to the article:

“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.

Of course, the “detailed records” the government has probably include a phone number, and the date and time it was made, as well as who was on the other end. Technical details about which “switching station” the call was originally routed through would probably be available as well.

The article points out that it would be easy enough to retrieve your name and address if the government wanted to - a disturbing piece of information if you are a terrorist. Come to think of it, that aspect of the program should make everyone uncomfortable. Which leads us to the $64,000 question; is this program really necessary? Or are the spooks just playing fast and loose with the constitution for the hell of it?

The White House would not discuss the domestic call-tracking program. “There is no domestic surveillance without court approval,” said Dana Perino, deputy press secretary, referring to actual eavesdropping.

She added that all national intelligence activities undertaken by the federal government “are lawful, necessary and required for the pursuit of al-Qaeda and affiliated terrorists.” All government-sponsored intelligence activities “are carefully reviewed and monitored,” Perino said. She also noted that “all appropriate members of Congress have been briefed on the intelligence efforts of the United States.”

If “all appropriate members of Congress” have been told of this program (something we’ll surely find out in a few hours whether nor not that statement is factual) without a peep prior to this, I would guess that there are aspects to the program not contained in the USA Today story that make this part of the NSA intercept program a necessary adjunct to their efforts regarding overseas communications. And if it were possible to have a debate about the efficacy of these programs as they relate to our constitutional rights without the jaw-dropping idiocy from the left and right, it might be instructive and necessary to the health of the republic.

But these kind of debates just are not possible. Not with this President in office. Not with the kind of unreasoning hatred the opposition displays on a daily basis. Any kind of rationality displayed by the left is taken as treason and the offender is drummed out of the tin foil hat brigade forthwith (Senator Lieberman, call you office).

So we are stuck with the unsatisfying feeling that we can’t be 100% sure that the programs are necessary because the left refuses to engage on any level but the gutter - and that is not a level conducive to arguing the merits of anything.

As I mentioned at the top of this piece, this story has been leaked as a transparent attempt to embarrass General Hayden and stop his nomination. While it will probably cause outrage on the left and among that ever more curious contrarian Senator Specter, the brouhaha over this will pass and Hayden should still be on track for confirmation.

Donald Rumsfeld told a bald faced lie yesterday. In the process of telling the lie, the Secretary of Defense showed that public officials still don’t get it, that with the advent of the internet and its powerful search engines, every utterance made in public yesterday can be recalled immediately and compared for accuracy today.

This familiar fact is not being absorbed by the political and journalistic elites, nor by academics, celebrities, and business leaders who continue to supply the fodder for ravenous blog beasts who delight in pointing out discrepancies, flip flops, prevarications, and misstatement of facts in the words of the high and mighty.

Are our elites really that clueless? The short answer is yes. Those of us who spend a lot of time on the net tend to forget the truly revolutionary nature of the New Media. We take so much for granted we naturally assume that everyone is as plugged in as we are. Hence, when the Secretary of Defense denies making a statement that has been highlighted about a dozen times in various postings on blogs, forums, chat rooms, and the growing number of E-Zines, we are surprised that someone could still not be aware that the rules have changed and that public officials can easily be held accountable for what they’ve said in the past.

Rumsfeld’s folly occurred yesterday at a forum in Atlanta where the Secretary was supposed to be talking about security issues but instead found himself continuously having to deal with the “speaking truth to power” crowd and other free speech advocates - the “free speech for me but not for thee” nitwits who are too dense to realize the snickering irony inherent in their “protests.” Constantly interrupted with attempts to shout him down (something Rumsfeld has evidently gotten used to), it was in the Q & A session where Rumsfeld unleashed his whopper.

Somehow, rogue ex-CIA agent Ray McGovern had been invited to the event. McGovern you may recall is on the steering committee of Veteran Intelligence Professionals for Sanity (VIPS), the group which has carried out an insurgency against the Bush Administration during a time of war that in another age, at another time, would have led to the satisfying spectacle of McGovern and many of his friends in VIPS swinging from a White Oak tree for treason. McGovern has also advanced the theory that the United States government was involved in the attacks of 9/11 and has urged active duty intelligence officers to leak classified information to the press.

The fact that he is a hero on the left shouldn’t come as much of a surprise. And the fact that he was in attendance at this forum in the first place proves that the disruptions and protests were about as spontaneous as Saturday night sex for an old married couple. This was a planned op carried out to maximize media exposure not to mention the goal of embarrassing the Secretary of Defense.

They needn’t have bothered because Rumsfeld embarrassed himself. During the question and answer session. Mr. McGovern got a hold of the mike and began to fire questions at the Secretary:

Rumsfeld: …it appears that there were not weapons of mass destruction there.

Rumsfeld: My words-my words were that-no-no, wait a minute–wait a minute. Let him stay one second. Just a second….

For the record, here’s the familiar exchange between ABC’s George Stephanopolous and Rumsefeld on March 30, 2003:

MR. STEPHANOPOULOS: Finally, weapons of mass destruction. Key goal of the military campaign is finding those weapons of mass destruction. None have been found yet. There was a raid on the Answar Al-Islam Camp up in the north last night. A lot of people expected to find ricin there. None was found. How big of a problem is that? And is it curious to you that given how much control U.S. and coalition forces now have in the country, they haven’t found any weapons of mass destruction?

SEC. RUMSFELD: Not at all. If you think — let me take that, both pieces — the area in the south and the west and the north that coalition forces control is substantial. It happens not to be the area where weapons of mass destruction were dispersed. We know where they are. They’re in the area around Tikrit and Baghdad and east, west, south and north somewhat.

The irony here is that McGovern was accusing Rumsefeld of “lying” in 2003 while the Secretary ended up lying about actually telling the truth. What was the truth? That Rumsfeld, Colin Powell, George Bush, the overwhelming majority of analysts in our intelligence community, the intelligence agencies of the western world, Hosni Mubarak, the Emir of Kuwait, Vladmir Putin, and Saddam Hussein himself all believed there were weapons of mass destruction in Iraq.

To accuse someone of lying when they believe what they are saying is true is idiocy. Does a child lie when he talks about Santa Claus coming on Christmas eve? According the left, the answer is yes. The child believes whole heartedly in Santa Claus and talks about him as if he is a real person. But for the left, this doesn’t matter. The child is lying through his teeth and should be “called out” for his prevarications.

This ground has been covered thoroughly in the past three years. The American people made their determination about these “lies” in the election of 2004, rejecting the leftist interpretation of the “truth.” And this is why Rumsfeld’s lie about what he said back in 2003 (and given the wide play those words have received over the past three years I find it highly unlikely that the Secretary did not recall exactly what he said) was so unnecessary but perhaps indicative of the state of the executive branch of government in modern America.

The inability of public servants to admit to mistakes has gotten to the point of surrealness. There is something dreamlike about Rumsfeld’s continuing defense of the Pentagon’s performance and assessment of what has been happening in Iraq. It isn’t just a matter of Pollyanish briefings about the capabilities of the Iraqi army (although there has been marked improvement in the last 6 months) or about the level of sectarian strife (100,000 people fleeing from the violence and dozens of bodies being found every day). Rumsfeld’s folly extends to decisions made going all the way back to the beginning of the war starting with the number of troops that would be needed to pacify the country following the overthrow of Saddam. Despite the lawlessness that plagues Iraq to this day, the Secretary of Defense refuses to admit error in this regard.

The explanation that criticism would be overwhelming if he did so doesn’t hold water. Taking responsibility for your mistakes is part of the job - or at least it used to be part of the job for public servants. I distinctly remember the first time I realized that the rules had changed. It was following the total, unmitigated disaster at Waco and the deaths of 76 members of the Branch Davidians, 27 of whom were children. Attorney General Janet Reno should have been fired for her actions and the actions of her subordinates in the botched operation. Instead, President Clinton kept her on.

At the time, I racked my brains trying to think of any other President who would have kept an official who had committed such grievous errors in judgement. Certainly none come to mind even today. An important dynamic of executive leadership changed at that point; the fact that public officials are ultimately responsible for the results of their actions, not just their good intentions.

For Rumsfeld, the results have been less than adequate since Saddam’s statue was toppled. The Secretary may be a good manager. His ideas about a transformational military may prove to be inspired genius. And the performance of the troops under his command has been uniformly spectacular. But his refusal to acknowledge mistakes and adapt to new realities on the ground in Iraq has been a disaster. The insurgency, so long unacknowledged or shrugged off as Saddam bitter enders, was allowed to grow in strength until it has metastasized and will now require a monumental effort by the new Iraqi army to cut it out of the body politic. This inability to recognize the tribal and clannish nature of the insurgency despite being told repeatedly by his commanders of these facts on the ground has caused more problems than necessary to our troops.

Rumsfeld’s lie yesterday about something he didn’t have to lie about points to this changed dynamic in Washington that extends all the way to the office of the President. Accepting responsibility for mistakes both of omission and commission is necessary for our public servants. The American people recognize this which is why they are almost always quick to forgive an official who admits mistakes and apologizes. How and why this tradition has been lost probably has a lot to do with the polarization of our politics and the rabid, open hostility of the media to this President and his policies. But this really is no excuse. The people have shown that they are perfectly capable of making up their own minds about our leaders, even when they get most of their information through the prism of a press suffering from Bush Derangement Syndrome. George Bush’s re-election proves that point in emphatic fashion.

The Secretary’s lie will not get him fired. But given Rumsfeld’s performance over the last few years, perhaps it should.

At the risk of angering many of the thoughtful readers who grace this site with their perspicacious comments, I think the jury in the Zacarius Moussaoui case did a brave and noble thing by sparing the killer’s life. Their decision validates our justice system in a way that brings honor to our values and the system of justice that protects those values.

No one should envy the jurors their task. And the fact that, in the end, they saw Moussaoui as a living, breathing human being and not some symbol of the terrible wrong done to us on 9/11 or as a stand-in for Osama Bin Laden speaks volumes about the careful and meticulous way the jury individually and as a group approached the penalty phase of the trial.

Moussaoui’s crimes were of omission and design; with foreknowledge of the attack, he could have warned the United States government of what was being planned. And he took part in a conspiracy where mass murder was planned as carefully and as dispassionately as if one were making arrangements for a long vacation. The fact that the plotter’s deliberations included maximizing wherever possible the number of innocent civilian casualties places Moussaoui’s crimes beyond the scope of normal conspiracy statutes and elevates his transgressions to the level of a crime against humanity. For many, justice cried out for this terrorist’s execution.

But a careful reading of the jury’s thoughts contained in the 42 page verdict shows that these 12 ordinary Americans (the foreman was a high school math teacher) resisted the impulse to lash out in revenge against Moussaoui and instead looked at the law, at precedent, and finally into their own souls to justify their verdict.

It may be well to place yourself in their shoes for a few minutes and think about what faced them as they struggled to do what is right and just. It appears that none of the jurors agreed on any one “mitigating factor” when making their decision. Many pointed to Moussaoui’s horrible childhood. Others to his limited knowledge and role in the actual attack on 9/11. Still others thought that racism played a part in the terrorist’s warped childhood development.

It could be argued successfully that any one of those factors should not be used to stop the execution of a man who so clearly wanted to to martyr himself and who holds the people and institutions of the United States in such contempt. The problem was in the application of the law; unless the jury’s verdict of death was unanimous, Moussaoui would get life in prison. And since all the jurors agreed that at least one mitigating factor was present, Moussaoui escaped death.

As the New York Times points out, the most telling factor could have been the 24 witnesses - many of whom lost loved ones on 9/11 - who testified for the defense, an unprecedented event in the history of the penalty phase in murder trials:

Neither group [of witnesses] was allowed to testify on their preferences for Mr. Moussaoui’s fate. But defense lawyers said they believed that the jurors inferred from their witnesses that some victims were not seeking the death penalty.

“The testimony of family members was immensely personal and also displayed the deep divisions that mark the issue of capital punishment in this country,” [Attorney for the defense] Mr. MacMahon said. “This is, to our knowledge, the only capital case where victims have testified as witnesses called by the defense. This testimony demonstrated resilience and the possibility of renewal.”

He said he had never expected anything but a death sentence.

Robin Theurkauf, who lost her husband in the World Trade Center and testified for the defense , said in an interview she was surprised but gratified by the verdict.

Ms. Theurkauf, a divinity student at Yale, said that by showing the jury that some family members were not seeking Mr. Moussaoui’s death, “We may have given them permission to free themselves from a obligation to respond to the massive grief with vengeance. We allowed them to view the case dispassionately.”

I sympathize with those who believe that it would have been enormously satisfying to put this man to death. But I think we have to have some sympathy for the jurors as well. Talk about executing a human being is cheap. Unless it is actually your responsibility, I daresay one’s outlook on the death penalty then would become very personal. Whether the jurors were looking for an “out” in order to avoid mandating another person’s death is beside the point. They followed the law, their consciences, and in the end, common sense. As our representatives, we couldn’t have asked for anything more from them.

One aspect that was not brought out in the verdict but which very well may have played a role in the jury’s deliberations was their decision to deny martyrdom to someone who so obviously wanted it. From a practical standpoint, Moussaoui will now fade into history even among those who admire what he stands for. His incarceration in a very deep and very black hole (it’s almost a guarantee he will not be placed into the general prison population and instead will be kept in solitary confinement) will mean that his name will eventually die even if he himself remains alive. That is a victory against our enemies of sorts.

A close call, but a correct one. And I don’t think that even those among us who support the death penalty but agree with this decision would have been terribly upset if the verdict had gone the other way. As it is, I’m glad that justice triumphed over revenge.

UPDATE

I think this is going to be one of those days…

A quick perusal of conservative sites shows that I am all alone in my opinion regarding the jury’s decision. A sampling:

Dr. Shackleford: “A Travesty of Justice.”

Misha: “The Worst BullS**t Verdit of All Time”

Jay at STACLU: “I’m a little very disappointed here. I was hoping they were gonna fry this creep.”

Mike at Cold Fury: “Choking on it”

Stephen Green (even the libertarians are against me!): “The First Mistake”

And Goldstein: “Meanwhile, somewhere in a cave complex in the wilds of Pakistan, Usama bin Laden smiles the smile of the strong horse and enjoys a plate of figs and mountain berries… ”

Sully sorta agrees with me: “A vile human being. I oppose the death penalty, but if I had to make an exception, it would be him.”

Not Kurt at Flopping Aces: “A disgusting verdict.”

Eric Lindholm: “Three thousand Americans dead – Moussaoui gets life”

Pat Curley: “I am not a huge fan of the death penalty, but if there was ever a case that cried out for it, it’s this one.”

At least my brother Jim still loves me. His excellent piece (that actually influenced my thinking a bit) that ties in the Nuremberg Tribunals can be found here.

UPDATE II

Attywood quotes Newsweek’s Michael Isikoff on Hardball and has a good question: “Why won’t the government try the real criminals of 9/11?”

This entire Moussaoui trial was a side show. The Justice Department indicted him at the time, they thought he might have been the 20th hijacker. They later learned he was not. But there was a feeling, that for altogether understandable reasons, that the country needed a trial, the cathartic effect of a trial to deal with the most horrific crime in American history.

But the point is that after the time that they indicted Moussaoui, we came to get into custody the people who were directly responsible for that crime, the architect, Khalid Shaikh Mohammed (pictured here at top), Ramzi bin al-Shibh, who was Mohammed Atta`s collaborator at every step of the way — twice in 2001, Atta leaves the country to consult with Ramzi bin al-Shibh about the for the attack — the financier who was also in custody, Qualli bin Atassh (phonetic) who helped planned it at the Malaysia meeting.

As I’ve said on many occasions, this is exactly why Congress must act to settle the question of detainee rights once and for all. The White House isn’t going to do it. And it appears that the courts are not only taking their own sweet time about doing so but our judges also seem reluctant to rule very broadly on the issue which leaves the door open for more motions, more rulings that are making an absolute hash of the entire situation.

Did the Administration make a deal with KSM to not execute him if he talked? Did he talk under the influence of torture and thus prosecuting him would not only expose the Bush Administration to withering criticism but also make it impossible to convict him?

The New York Times:

So far only 10 of the 490 people still stashed away in Guantánamo have ever been charged with anything. The rest were hauled up before military proceedings that were a joke, if the available transcripts are any indication, to determine whether they should continue to be held without any rights or process under the phony label of “unlawful enemy combatant” that the Bush administration concocted after 9/11 for just this purpose. This is not even a half-hearted stab at a day in court, and it leaves hundreds of people under indefinite, illegal detention.

Among them are about 150 prisoners whom the government says it would like to send home because they pose no threat to the United States, but feels it can’t. Some, like the Uighurs — Chinese Muslims — would face possible prison or torture if sent back to countries without basic regard for human rights. The Bush administration has put itself in a bizarre situation when it is forced to worry about the humane treatment of people it whisked off to Guantánamo without any serious attempt to determine who they were, much less what crime they may have committed. They were then held without charges, many under abusive conditions that sometimes amounted to torture, for more than three years.

I disagree with the way the Times, in typical Bush bashing fashion, characterizes what the Administration felt it had to do. Nevertheless, their point is well taken. There are some legitimate questions surrounding the guilt of some of the detainees. This is not just the determination of wacko liberal groups like ACLU and Amnesty International. Several respected criminal attorneys representing detainees have said exactly the same thing.

And this brings us back to what rights these detainees have under American law. Must they “prove” their innocence in order to be released? What rights do they have to see the evidence against them, even if that evidence is classified? Do they have a chance to confront any witnesses who spoke against them?

I hope you see where I’m going with this. Just because they’re in Gitmo or Bagram doesn’t make them guilty. Some kind of determination - some rudimentary form of justice must be meted out or it gives the lie to our entire legal system.