This Story You Will Be Talking About Tomorrow

Mark Joyella at Mediaite:

Sources tell Mediaite Keith Olbermann and MSNBC were headed for a breakup long before Comcast’s rise to power, but clearly something set the divorce into motion quickly today, with network promos set to run touting Olbermann’s role in MSNBC’s coverage of next week’s State of the Union address–and, notably, a Keith Olbermann promo running on MSNBC in the hour after the host signed off and left the network.

MSNBC executives have long planned for the day the network’s star might be sent packing, and the rise of Rachel Maddow at MSNBC–along with the grooming of Lawrence O’Donnell as a potential replacement for Olbermann–appears to have hastened the host’s departure.

While Olbermann and his iconic Countdown have been immensely important in the resurgence of MSNBC, Olbermann’s friction with management has been a sticking point. At many points–including the recent suspension over political contributions–tensions rose so high as to lead to serious discussions inside MSNBC about firing their star.

With Maddow enjoying both immense popularity inside MSNBC and very strong ratings for her Rachel Maddow Show, Olbermann’s invincibility as the heart and soul of MSNBC’s brand became softer. In recent weeks, sources tell Mediaite there have been meetings on the topic of Keith Olbermann and his future at the network. Did Comcast–as many Countdown viewers seem to suspect–order Olbermann out? It appears that the end of the Olbermann era at MSNBC was not “ordered” by Comcast, nor was it a move to tone down the network’s politics. Instead, sources inside the network say it came down to the more mundane world of office politics–Olbermann was a difficult employee, who clashed with bosses, colleagues and underlings alike, and with the Comcast-related departure of Jeff Zucker, and the rise of Maddow and O’Donnell, the landscape shifted, making an Olbermann exit suddenly seem well-timed.

Howard Kurtz at Daily Beast:

Whatever his excesses, he led third-place MSNBC out of the cable wilderness to the point where it overtook CNN in prime time, boosted not only by his numbers but by those of his protégé, Rachel Maddow.

Without question, he was a polarizing presence, and several NBC veterans, including Tom Brokaw, complained to network management that he was damaging MSNBC’s reputation for independence.

At a meeting with Olbermann’s representatives last September, NBC Chief Executive Jeff Zucker and NBC News President Steve Capus said that some of their client’s behavior was unacceptable and had to stop. Griffin said that Olbermann’s personal problems were affecting his work and he looked angrier on the air, eclipsing the smart and ironic anchor they had once loved.

In November, when Griffin suspended Olbermann indefinitely over the political donations, the two sides engaged in blistering negotiations over how long it would last. Olbermann’s manager, Price, warned Griffin that if the matter wasn’t resolved quickly, Olbermann would take his complaints public by accepting invitations from Good Morning America, David Letterman, and Larry King.

“If you go on GMA, I will fire Keith,” Griffin shot back.

The suspension wound up lasting just two days, and Olbermann said he was sorry for the “unnecessary drama” and “for having mistakenly violated an inconsistently applied rule” in making the $7,200 in contributions. But after years of internal warfare, Olbermann had no major allies left at 30 Rock.

There were similar backstage struggles in 2008 and 2009 when top executives tried to get Olbermann and O’Reilly to tone down their personal attacks. O’Reilly, who never mentions Olbermann by name, was assailing NBC’s parent company, General Electric, while Olbermann once imagined the fate of “a poor kid” born to a transgendered man who became pregnant, adding: “Kind of like life at home for Bill’s kids.”

Josh Marshall at Talking Points Memo:

I was just on in the opening segment of Olbermann tonight. And I get home and get this press release from NBC saying this was the last episode of Countdown. At first I figured it had to be a spoof email because, jeez, I was on and I didn’t have any sense that any other than a regular Friday evening show was on. But sure enough I pulled up the recording and now I’m watching his final sign off.

I doubt I would have had any heads up or known anything was happening if Olbermann was going to go off the air. But I was a bit more stunned than I might otherwise have been because I was just over there. And I did not have any sense that there was anything any different than normal going on. Everything seemed calm and pretty sedate. I didn’t sense anything different in Keith’s manner or affect (though it’s not like we’re tight and I would have been the person to notice.) There were a few more people than I’m used to seeing in the studio — maybe two or three, seated, who seemed to be there to watch. (Something I don’t remember seeing before.) But nothing that made me think twice that anything odd was going on.

I’m sure we’ll be hearing soon enough what on earth happened here. But color me stunned. And really disappointed.

Joe Klein at Swampland at Time:

Keith Olbermann and I started from the same place, the same school, the same English teacher–Arthur Naething–who changed our lives. I’ve always had a soft spot for Keith as a result, even when he called me one of the worst people in the world (based on a wildly inaccurate interpretation of something I’d written). I’ve criticized him, too, for his melodramatically over-the-top effusions. I’m not so sure what this dispute with MSNBC is all about, but I’m sad that Keith won’t be around (at least, for a while). If there is a place for the nonsense-spew of Fox News, there has to be a place on my cable dial for Olbermann (who, while occasionally obnoxious, operates from a base of reality–unlike some people we know [see below]). Keith is a brilliant writer, and presenter; I always enjoy watching him, even when he’s occasionally wrong. I hope I’ll have the opportunity to do so again soon. In the meantime, I hope he’ll heed the words of the master and “Go forth, and spread beauty and light.”

On another decidedly hilarious front, Glenn Beck has found yet another enemy of the people in a 78-year-old Columbia University professor named Frances Fox Piven. I’ve always thought that Piven’s work was foolish and inhumane. There was a brief, disastrous time in the 1960s when her desire to flood the welfare system with new recipients was the tacit policy of the city of New York, which produced absolutely terrible results–as Daniel Patrick Moynihan predicted–in the 1970s and 1980s. I also remember Piven railing against a brilliantly successful welfare-to-work program called “America Works” because it was for-profit, even though the company only was paid by the government if the recipient remained on the job for six months (and even though the ability to do honorable work gave the women involved new-found confidence, according to study after study of the results). But the notion that Piven’s ideas had any widespread influence, or are even worth commenting on 45 years later, is beyond absurd; it is another case of Beck’s show-paranoid perversity. It seems academic and sophisticated, to those who don’t know any better: Glenn’s soooo erudite, he’s found a secret part of The Plan to turn America into a socialist gulag, hatched by a college professor. The reality is that he’s focused onto an obscure form of left-liberalism that was found wanting a long time ago, as the sociological results of Aid to Families with Dependent Children became known, and better ways to help the poor were developed.

Beck’s essential sin is a matter of proportionality. He has, as ever, latched onto an obscurity, blown it out of proportion–as he did with Van Jones’ stupid but essentially harmless comments about communism–and turned it into a lie. He is an extraordinary liar, on matters large and small, as I’ve learned from personal experience with the man. That Beck remains on the air and Keith Olbermann–unpleasant and extreme at times, but no fantasist–isn’t anymore is a travesty.

Greg Sargent:

What of Olbermann’s legacy? There’s a great deal of crowing on the right about Olbermann’s apparent ouster. But let’s be clear on what he accomplished: He helped clear a huge space on the airwaves for “unapologetic liberalism,” as Steve Benen puts it, when it remained anything but certain that such a space could be created with any measure of success.

The unexpected popularity of Olbermann’s show early on cleared the way for MSNBC to stack its nighttime lineup with pugnacious lefty hosts. Indeed, it was Olbermann who invited Rachel Maddow on repeatedly as a guest, raising her profile to the point where she got her own show. Olbermann, followed by Maddow, proved in the face of enormous skepticism that there’s a huge audience out there for real liberal talk-show hosts to adopt the sort of take-no-prisoners approach once monopolized by the right. Only they accomplished this without descending into the crackpot conspiracy mongering and all-around ugliness of Rush Limbaugh and Glenn Beck.

Indeed, there’s already talk that CNN might be interested in picking up Olbermann. While that seems unlikely, given CNN’s more staid air, the mere fact that it’s being discussed at all shows how much he helped change the landscape.

Olbermann may be gone, but the space he did so much to help create is here to stay.

Joe Coscarelli at Village Voice:

Though it’s as of yet impossible to answer the question “Why?” in regards to Olbermann’s dismissal, what is on the record is how trying he was to manage. Back in October, there was Gabriel Sherman’s account in New York of the cable news wars with tidbits like this:

But Olbermann can take his eccentricities to extremes. There’s a story that he told his producers to communicate with him by leaving notes in a small box positioned outside his office. Last spring, after David Shuster tweeted that he was guest-hosting Countdown while Olbermann was out sick, Olbermann erupted when a blog mentioned Shuster’s tweet and he fired off an e-mail to him saying, “Don’t ever talk about me and medical issues again.” Olbermann’s executive producer later told Shuster that there’s a rule against mentioning Olbermann on Twitter.

And more of the same in the Times today:

Mr. Olbermann was within one move of being fired in November after he was suspended for making donations to Democratic Congressional candidates. He threatened to make an appearance on ABC’s “Good Morning America” to protest the suspension; Mr. Zucker was prepared to fire him on the spot if he did, according to a senior NBC Universal executive who declined to be identified in discussing confidential deliberations.

Many questions remains, but if he’s not in the mood for a vacation, Olbermann does have options, namely radio or the internet. So he should join us and he needn’t worry — here, everyone is an asshole.

A Hostage Situation At Discovery Communications Building

MSNBC:

Police shot and killed a man armed with several bombs who held three hostages Wednesday at the Discovery Communications building. Authorities said the hostages were safe.

At least one device on the man’s body went off when he was shot inside the building in suburban Washington, D.C., Montgomery County police Chief Thomas Manger said. Police were searching the building for other explosive devices.

Manger said no one was believed to have been injured other than the gunman, whom SWAT officers shot about 4:50 p.m. ET because officials “believed the hostages were in danger.” The building in the close-in suburb of Washington was safely evacuated, including the Discovery Kids Place day care center, police said.

An NBC News producer who called the building to find out what was going on had a brief telephone conversation with the man when he came on the line unexpectedly. He identified himself as James J. Lee and said, “I have a gun and I have a bomb. … I have several bombs strapped to my body ready to go off.”

NBC News informed Montgomery County authorities of the conversation as the producer spoke to the man for about 10 minutes. NBC News did not report the conversation until the hostage situation had been resolved.

Michelle Malkin:

There’s been a breaking hostage situation at the Discovery Channel office in Silver Spring, MD all morning. The alleged gunman reportedly has explosives strapped to his body and there have been reports of at least one hostage. The office has been evacuated, including many children at a day care in the building.

WUSA 9, a local TV affiliate, in DC is pointing to this website called “Save the Planet Protest” as the site of the alleged gunman’s unconfirmed demands.

In case the site goes down, here’s the manifesto in full:

The Discovery Channel MUST broadcast to the world their commitment to save the planet and to do the following IMMEDIATELY:
1. The Discovery Channel and it’s affiliate channels MUST have daily television programs at prime time slots based on Daniel Quinn’s “My Ishmael” pages 207-212 where solutions to save the planet would be done in the same way as the Industrial Revolution was done, by people building on each other’s inventive ideas. Focus must be given on how people can live WITHOUT giving birth to more filthy human children since those new additions continue pollution and are pollution. A game show format contest would be in order. Perhaps also forums of leading scientists who understand and agree with the Malthus-Darwin science and the problem of human overpopulation. Do both. Do all until something WORKS and the natural world starts improving and human civilization building STOPS and is reversed! MAKE IT INTERESTING SO PEOPLE WATCH AND APPLY SOLUTIONS!!!!

2. All programs on Discovery Health-TLC must stop encouraging the birth of any more parasitic human infants and the false heroics behind those actions. In those programs’ places, programs encouraging human sterilization and infertility must be pushed. All former pro-birth programs must now push in the direction of stopping human birth, not encouraging it.

3. All programs promoting War and the technology behind those must cease. There is no sense in advertising weapons of mass-destruction anymore. Instead, talk about ways to disassemble civilization and concentrate the message in finding SOLUTIONS to solving global military mechanized conflict. Again, solutions solutions instead of just repeating the same old wars with newer weapons. Also, keep out the fraudulent peace movements. They are liars and fakes and had no real intention of ending the wars. ALL OF THEM ARE FAKE! On one hand, they claim they want the wars to end, on the other, they are demanding the human population increase. World War II had 2 Billion humans and after that war, the people decided that tripling the population would assure peace. WTF??? STUPIDITY! MORE HUMANS EQUALS MORE WAR!

4. Civilization must be exposed for the filth it is. That, and all its disgusting religious-cultural roots and greed. Broadcast this message until the pollution in the planet is reversed and the human population goes down! This is your obligation. If you think it isn’t, then get hell off the planet! Breathe Oil! It is the moral obligation of everyone living otherwise what good are they??

5. Immigration: Programs must be developed to find solutions to stopping ALL immigration pollution and the anchor baby filth that follows that. Find solutions to stopping it. Call for people in the world to develop solutions to stop it completely and permanently. Find solutions FOR these countries so they stop sending their breeding populations to the US and the world to seek jobs and therefore breed more unwanted pollution babies. FIND SOLUTIONS FOR THEM TO STOP THEIR HUMAN GROWTH AND THE EXPORTATION OF THAT DISGUSTING FILTH! (The first world is feeding the population growth of the Third World and those human families are going to where the food is! They must stop procreating new humans looking for nonexistant jobs!)

6. Find solutions for Global Warming, Automotive pollution, International Trade, factory pollution, and the whole blasted human economy. Find ways so that people don’t build more housing pollution which destroys the environment to make way for more human filth! Find solutions so that people stop breeding as well as stopping using Oil in order to REVERSE Global warming and the destruction of the planet!

7. Develop shows that mention the Malthusian sciences about how food production leads to the overpopulation of the Human race. Talk about Evolution. Talk about Malthus and Darwin until it sinks into the stupid people’s brains until they get it!!

8. Saving the Planet means saving what’s left of the non-human Wildlife by decreasing the Human population. That means stopping the human race from breeding any more disgusting human babies! You’re the media, you can reach enough people. It’s your resposibility because you reach so many minds!!!

9. Develop shows that will correct and dismantle the dangerous US world economy. Find solutions for their disasterous Ponzi-Casino economy before they take the world to another nuclear war.

10. Stop all shows glorifying human birthing on all your channels and on TLC. Stop Future Weapons shows or replace the dialogue condemning the people behind these developments so that the shows become exposes rather than advertisements of Arms sales and development!

11. You’re also going to find solutions for unemployment and housing. All these unemployed people makes me think the US is headed toward more war.

Humans are the most destructive, filthy, pollutive creatures around and are wrecking what’s left of the planet with their false morals and breeding culture.

For every human born, ACRES of wildlife forests must be turned into farmland in order to feed that new addition over the course of 60 to 100 YEARS of that new human’s lifespan! THIS IS AT THE EXPENSE OF THE FOREST CREATURES!!!! All human procreation and farming must cease!

It is the responsiblity of everyone to preserve the planet they live on by not breeding any more children who will continue their filthy practices. Children represent FUTURE catastrophic pollution whereas their parents are current pollution. NO MORE BABIES! Population growth is a real crisis. Even one child born in the US will use 30 to a thousand times more resources than a Third World child. It’s like a couple are having 30 babies even though it’s just one! If the US goes in this direction maybe other countries will too!

Also, war must be halted. Not because it’s morally wrong, but because of the catastrophic environmental damage modern weapons cause to other creatures. FIND SOLUTIONS JUST LIKE THE BOOK SAYS! Humans are supposed to be inventive. INVENT, DAMN YOU!!

The world needs TV shows that DEVELOP solutions to the problems that humans are causing, not stupify the people into destroying the world. Not encouraging them to breed more environmentally harmful humans.

Saving the environment and the remaning species diversity of the planet is now your mindset. Nothing is more important than saving them. The Lions, Tigers, Giraffes, Elephants, Froggies, Turtles, Apes, Raccoons, Beetles, Ants, Sharks, Bears, and, of course, the Squirrels.

The humans? The planet does not need humans.

You MUST KNOW the human population is behind all the pollution and problems in the world, and YET you encourage the exact opposite instead of discouraging human growth and procreation. Surely you MUST ALREADY KNOW this!

I want Discovery Communications to broadcast on their channels to the world their new program lineup and I want proof they are doing so. I want the new shows started by asking the public for inventive solution ideas to save the planet and the remaining wildlife on it.

These are the demands and sayings of Lee.

Another D.C. tv news affiliate, WJLA, says that police scanner traffic indicates that the gunman is an “Asian male” and possible ex-employee of Discovery.

David Weigel:

This is the kind of thing that sparks a three-part reaction in the opinionoverse.

1) Investigation. Who is this guy? Right and left partisans immediately worry that it’s one of their team (defined loosely — a white liberal might worry that it’s a Muslim radical who’ll prove Frank Gaffney right).

2) Revelation. The identity of the perp is discovered — in this case, we find that it’s an anti-human population activist. Everyone pretends that their previous theories about what might be happening were never really serious.

3) Polarization. The people whose ideology most matches the perp cry loudly that he is crazy and has nothing to do with them. The people whose ideology is antithetical to the perp’s — in this case, conservative skeptics of environmentalism — subtly hint that the perp is too representative of the other team. Oh, sure, they’re not saying that. But every time someone goes crazy on the other side, they get blamed, so it’s only fair.

In 24 hours or so, a few articles will be pitched and sold about the political meaning of the story. Everyone else will forget about it and feel vaguely dirty for having thought so hard about it at all.

Max Fisher at The Atlantic with the round-up

Andrea Nill at Think Progress:

Lee’s immigration screed bears a troubling resemblance to views and policies espoused by anti-immigrant groups such as NumbersUSA, the Center for Immigration Studies (CIS), the Federation for American Immigration Reform (FAIR), Progressives for Immigration Reform, and others. Just this past month, FAIR released “The Environmentalist’s Guide to a Sensible Immigration Policy.” The report connects immigration to “pollution, sprawl, congestion, and ecological degradation,” complaining that “so-called environmentalists pretend as if this connection does not exist.” As usual, FAIR prescribes an overall reduction in immigration as the solution to the country’s environmental woes (in slightly more diplomatic terms).

It’s not a coincidence that many of these are amongst the same groups that have always supported changing the 14th amendment to deny “anchor babies,” or the American-born children of undocumented immigrants, citizenship — long before the debate entered the political mainstream this summer. Read more about Lee and the anti-immigrant environmental movement at the Wonk Room.

Mark Hemingway at The Washington Examiner:

The question is, to what extent will the media note that this violence was spurred by a radical left-wing environmental agenda, or that eco-terrorism is not a new phenomenon and is arguably the America’s biggest domestic terrorist threat?

Then again, maybe the gunman is just angling for a job in the White House. Consider the book Ecoscience, written by Obama’s “science czar,” John Holdren:

Even more troubling: Over the weekend, a blogger at Zombietime.com unearthed a book written over 30 years ago by John Holdren, President Obama’s “science czar.”

The book, Ecoscience, was co-written with neo-Malthusian prophet of doom and scientific laughingstock Paul Ehrlich. In it, Holdren advocates a series of bizarre and horrifying measures to deal with an overpopulation threat that never materialized.

Among the suggestions in the book: Laws requiring the abortion or adoption of illegitimate children; sterilizing women after having two children; legally requiring “reproductive responsibility” to those deemed by pointy-headed eugenicists to “contribute to general social deterioration”; and incredibly, putting sterilizing agents in the drinking water.

Naturally, these population control measures would be enforced by “an armed international organization, a global analogue of a police force.” Very recently, Holdren was still listing the book on his C.V.

Sound familiar?

Mary Katherine Ham at The Weekly Standard:

His username is also connected to a meet-up group for Daniel Quinn devotees called the “Friends of Ishmael.” A man named Lee, with a misterfifteen e-mail adress  seems to have started his own chapter in San Diego in 2006, called “World Guardian Voices.” The site for his group is archived here, with a notice of an upcoming meeting at a Borders book store to talk about global warming and overpopulation.

He even offered his e-mail address for anyone who’d like to “schedule a speech.”

Lee’s MySpace page offers similar rants, and an odd array of pictures, mostly of owls, apes, Darth Vader, and Bugs Bunny. He lists among those he’d like to meet, “Environmentalists, scientists, readers of Daniel Quinn, and people who want to work toward a real change.”

Allah Pundit:

Max Fisher of the Atlantic somehow read this post to mean that I think (a) Lee was a liberal and (b) because liberals relentlessly politicize “lone nut” incidents involving right-wingers, conservatives should do the same to them. (His tagline in summarizing this post at the Atlantic is “Hang This Attack Around Liberals’ Necks.”) On the first point, I don’t know if Lee was a down-the-line doctrinaire liberal or not; my point was simply that the green concerns that motivated him are typically identified with the left and therefore many people will conclude that he’s some species of liberal. By the same token, when someone bombs an abortion clinic, no one waits to find out the bomber’s opinion on, say, Iraq and federal spending before identifying him with the right. It’s the motive that defines the suspect politically in incidents like these. As for the second point — and I’m frankly amazed that anyone might have misunderstood it — what I’m saying is that liberals and environmentalists shouldn’t be blamed for this. Don’t politicize the incident by hanging the actions of a lunatic around their neck. What I meant up top about reminding them of this the next time they politicize something done by a right-wing nut was merely how this proves that there are crazies of all stripes and that I didn’t try to score a cheap political point against them today when the opportunity presented itself. Is this really that complicated?

Ann Althouse

Instapundit

Won’t Al Gore please stop it with his extremist, eliminationist rhetoric before he inspires still more violence?

Facebook Status: Evil

Helen A.S. Popkin at MSNBC:

Pop quiz! What do you call “the act of creating deliberately confusing jargon and user-interfaces which trick your users into sharing more info about themselves than they really want to?”

Give up? Don’t feel dumb. Even the Electronic Frontier Foundation, a free speech, privacy, innovation and consumer rights advocacy organization, had a tough time wrapping its collective brain around the concept as it built its tutorial to help users through Facebook’s most recent privacy changes. So EFF turned to Facebook and Twitter users for help.

Suggestions for a term to easily describe mishegas such as “Facebook’s bizarre new ‘opt-out’ procedures” rolled in. These included “bait-and-click,” “bait-and-phish,” “dot-confidence games,” “confuser-interface-design,” and though EFF didn’t mention the social network specifically, more than a few that made creative use of Facebook founder Mark Zuckerberg’s name, such as this one called out on EFF’s site from @heisenthought on Twitter:

“How about ‘zuck’? As in: ‘That user-interface totally zuckered me into sharing 50 wedding photos. That kinda zucks’”

Apparently people feel pretty strongly about Facebook’s latest privacy rollback, a new move to “personalize your (Web) experience using your public Facebook information,” even if you don’t fully understand what it means, let alone how to “opt out” of generously offering your personal info with the social network’s partner sites.

Tim Jones at Electric Frontier Foundation:

The new Facebook is full of similarly deceptive interfaces. A classic is the “Show Friend List to everyone” checkbox. You may remember that when Facebook announced it would begin treating friend-lists as “publicly available information” last December, the change was met with user protests and government investigation. The objections were so strong that Facebook felt the need to take action in response. Just one problem: Facebook didn’t actually want to give up any of the rights it had granted itself. The result was the obscure and impotent checkbox pictured here. It’s designed to be hard to find — it’s located in an unlikely area of the User Profile page, instead of in the Privacy Settings page. And it’s worded to be as weak as possible — notice that the language lets a user set their friend-list’s “visibility”, but not whether Facebook has the right to use that information elsewhere.

A more recent example is the process introduced last week for opting out of Instant Personalization. This new feature allows select Facebook partner websites to collect and log all of your “publicly available” Facebook information any time you visit their websites. We’ve already documented the labyrinthine process Facebook requires users to take to protect their data, so I won’t repeat it here. Suffice to say that sharing your data requires radically less work than protecting it.

Of course, Facebook is far from the only social networking company to use this kind of trick. Memorably, users of GMail were surprised last February by the introduction of Google Buzz, which threatened to move private GMail recipients into a public “frequent contacts” list. As we noted at the time, Buzz’s needlessly complex “opt-out” user-interface was a big part of the problem.

OK, perhaps the word “evil” is a little strong. There’s no doubt that bad user-interfaces can come from good intentions. Design is difficult, and accidents do happen. But when an accident coincidentally bolsters a company’s business model at the expense of its users’ rights, it begins to look suspicious. And when similar accidents happen over and over again in the same company, around the same issues, it’s more than just coincidence. It’s a sign something’s seriously wrong.

Rhiannon Bowman at Creative Loafing:

Is Facebook evil?

Sometimes I think so. A friend twisted my arm until I joined. Once I did, I was inundated with ridiculous games and moronic requests to accept non-tangible “gifts.” Today, I’ve successfully blocked most of those apps but I still wonder what the hell I’m doing on Facebook.

I have one relative who freaks out if I don’t post regularly, but mostly I forget who I’m “friends” with and wonder if any of them could give a crap about the random stuff I post. At least once a week I think about quitting, but posting links to things I’ve written or events and organizations I support has proven helpful in the past.

So, for Cousin [redacted] and for the love of networking, I guess I’ll stay.

Ben Popkin at The Consumerist

William Brafford at The League:

Facebook’s master plan is worth thinking about. Right now, when you log on to a website without doing any fancy tricks, the website can figure out your location, browser, and operating system. If the site’s got a cookie in your system, they might have a lot more: records of past visits, things you bought in their online store, etc. But the website can really only recognize your computer and whatever user account you might have there. What Facebook aims to do is let the website recognize you. This is what the pros call “demographically verified visitor stats tied to people’s real identities.” Not only Facebook verify your identity; they’ll provide information about your place in the “social graph.”

That is to say, when I log into Amazon right now, Amazon knows that I’m William Brafford and that I’ve bought a bunch of stuff from them in the past. But let’s imagine a scenario where Facebook succeeds in transforming the web the way it wants to. Then, if I’m logged into Facebook and I go to Amazon, Amazon will probably have access to at least the following information:

• All the “pages” I’m associated with on Facebook
• My friends on Facebook; particularly, the friends that share relevant interests
• What my Facebook-enabled friends have recently purchased from their site
• The kinds of things I have recently “liked,” both on Facebook and around the Internet; for example, the songs from Pandora.com to which I’ve given a thumbs-up
• The kinds of things my friends have recently “liked”

(Remember, this isn’t how things are now; it’s just where we’re headed.)

One sneaky thing Facebook’s done is move from privacy controls to “visibility” controls. You actually have a pretty high degree of control over what other Facebook users can see when they look at your profile, but your ability to restrict applications and other websites from getting your info is pretty low. It’s actually kind of tricky (and sometimes impossible) to opt out of a lot of this stuff. Apparently it takes a lot of effort just to delete your account.

Naturally, Facebook and its partners are going to use this stuff to offer you sweet deals on items their algorithms think you want. And maybe this is a good trade. We trade information about our buying habits for discounts all the time — I mean, I’m signed up for a bunch of “rewards programs.” But there’s the problem — I signed up for that stuff. I didn’t ever want this with Facebook.

But here’s the truth: a small group of internet users getting worried about this stuff and deleting their accounts won’t make any difference, and if Facebook does win the battle for the internet, we’re just going to have to make accounts all over again. The real action is in the battles for control of the internet: Facebook vs. Google vs. Twitter vs. whoever else comes along next. We’re just spectators at this point.

Thomas Baekdal:

All of this is just a small part of Facebook’s growing level complexity and inconsistencies. The problem is that it is getting worse. Every week, Facebook announces a new set of policy changes, or introduces a new level of complexity.

Just take the whole mess of the new Facebook “likes”. First, Facebook changed what “like” means. To me a like is an endorsement. I like you, because you are reading this article. But that doesn’t mean I want to subscribe to everything you do, and have you fill my news stream with your updates.

But, Facebook now defines liking as both an endorsement but also the act of subscribing or following a person or brand.

We now have five different types of likes:

1. You can like a normal post on a page or profile. That is simply an endorsement, nothing else.
2. You can like a page, which isn’t an endorsement at all, instead it is a commitment because you are actually subscribing to it.
3. You can like an advertisement, which is also not an endorsement, but will cause you to subscribe to that brand (and any future post they might make)
4. You can like e.g. a movie review on a website, which is just an endorsement
5. You can like a website as a whole, which is both an endorsement and commitment, depending on how that website have implemented the like button. You will not be able to tell the difference, but website owners can decide to push updates to you, based on settings only the website owners control.

It is a mess, and it is deceptive marketing tactics. It’s like the difference of walking up to a girl, and saying “I like you” vs. “I want to marry you” – pretending that is the same thing.

Facebook excuses itself by saying that “User will understand the distinction through explicit social context,” which is a load of crap. Every usability expert in the world knows that introducing modes to distinguish identical actions are a really bad idea, and is impossible to understand.

But, they go on to say “To eliminate confusion and promote consistency, there will no longer be a way to give feedback to these types of news.”

Meaning that if you like a status update, your friends can see it, like or comment on it. But, if you like a page (and thus become a fan), your friends can see it but not comment or like it.

How is that eliminating confusion?

I’m sorry Facebook. I think your concept is brilliant, and the social world is amazing. But, if you don’t get your act together soon, you will end up like Myspace – or worse – AOL.

Your engineers are running the asylum.

Update: Read the follow-up to this article “I’m not quitting Facebook.”

Kevin Drum:

The more I read about Facebook, the more I really don’t like Facebook. I’m way behind the curve on this stuff, but the other day I read a post about privacy settings and realized just how little I know about it. I’ve always been pretty sparse with my Facebook account, so I’m not really worried about my darkest secrets becoming public or anything, but after reading this and then following the links I went in and changed a whole bunch of settings that had made my preferences available to third parties at Facebook’s whim. I had no idea these settings even existed. Then today I read this. “There is something seriously wrong with their business ethics,” says Thomas Baekdal, “when they even contemplate publishing content that was previously marked private.”

Ya think? As near as I can tell, Facebook’s business model is to periodically chip away at privacy settings, wait for the inevitable blowup, maybe give up a little bit of what they changed, and then wait for the fuss to blow over. Then six months later do it all over again. Rinse and repeat. Slowly but surely, they’ll be able to monetize every last bit of our lives and we’ll all be so tired we won’t even care. Or even notice.

I know I’m a dinosaur about this stuff, and maybe David Brin is right that privacy is a lost cause and we should all forget about thinking we have any, but I’m not ready to give in yet. I’ve been careful with Facebook in the past, but I think I’m going to be downright paranoid about it in the future.

Matthew Yglesias:

Is Facebook Evil?

Many are asking the question these days, and it’s worth pointing out that the company’s founder actually has a long record of shady ethics. Consider what he was up to before he launched Facebook:

Aping the style of hotornot.com, Facemash pitted Harvard students against one another, asking readers to view House facebook photos of two randomly selected undergraduates and choose which one was “hotter.”

The site was visited by 450 people within its first four hours online, after which Zuckerberg took the site down.

The site’s popularity with students, however, was not quite equaled by success among administrators.

“I put Facemash up on a Sunday night and within four hours my internet connection had been yanked,” he says.

Zuckerberg found himself brought before the Administrative Board for breaching security, violating copyrights and violating individuals’ privacy by using students’ online facebook photos without permission.

To be clear “online facebook photos” at this time did not refer to “Facebook photos.” Rather, he did something like break into the database of student ID card photos, and the appropriate the images in order to power his site.

John Hudson at The Atlantic:

Prompted by a rising tide of angry users, Facebook is calling a company-wide meeting to address privacy issues. In the past few months, the company has been hounded by senators and challenged by competitors offering platforms with greater privacy. On Tuesday, Facebook’s VP for public policy held a Q&A with the New York Times that, in some ways, did more damage than good. What can we expect from the company’s 4:00 p.m. meeting?

Nicholas Carlson at Business Insider:

CEO Mark Zuckerberg and his company are suddenly facing a big new round of scrutiny and criticism about their cavalier attitude toward user privacy.An early instant messenger exchange Mark had with a college friend won’t help put these concerns to rest.According to SAI sources, the following exchange is between a 19-year-old Mark Zuckerberg and a friend shortly after Mark launched The Facebook in his dorm room:

Zuck: Yeah so if you ever need info about anyone at Harvard

Zuck: Just ask.

Zuck: I have over 4,000 emails, pictures, addresses, SNS

[Redacted Friend’s Name]: What? How’d you manage that one?

Zuck: People just submitted it.

Zuck: I don’t know why.

Zuck: They “trust me”

Zuck: Dumb fucks.

Brutal.

Could Mark have been completely joking? Sure. But the exchange does reveal that Facebook’s aggressive attitude toward privacy may have begun early on.

The Actuary Speaks…

The Prowler at The American Spectator:

The economic report released last week by Health and Human Services, which indicated that President Barack Obama’s health care “reform” law would actually increase the cost of health care and impose higher costs on consumers, had been submitted to the office of HHS Secretary Kathleen Sebelius more than a week before the Congressional votes on the bill, according to career HHS sources, who added that Sebelius’s staff refused to review the document before the vote was taken.

“The reason we were given was that they did not want to influence the vote,” says an HHS source. “Which is actually the point of having a review like this, you would think.”

The analysis, performed by Medicare’s Office of the Actuary, which in the past has been identified as a “nonpolitical” office, set off alarm bells when submitted. “We know a copy was sent to the White House via their legislative affairs staff,” says the HHS staffer, “and there were a number of meetings here almost right after the analysis was submitted to the secretary’s office. Everyone went into lockdown, and people here were too scared to go public with the report.”

In the end, the report was released several weeks after the vote — the review by the secretary’s office reportedly took less than three days — and bore a note that the analysis was not the official position of the Obama administration.

Jim Hoft at Big Government:

More hope and change–

A damning health care report generated by actuaries at the Health and Human Services (HHS) Department was given to HHS Secretary Kathleen Sebelius more than a week before the health care vote. She hid the report from the public until a month after democrats rammed their nationalized health care bill through Congress.

The results from the report were troubling. The report released by Medicare and Medicaid actuaries shows that medical costs will skyrocket rising $389 billion 10 years. 14 million will lose their employer-based coverage. Millions of Americans will be left without insurance. And, millions more may be dumped into the already overwhelmed Medicaid system. 4 million American families will be hit with tax penalties under this new law.

Of course, these were ALL things that President Obama and Democratic leaders assured us would not happen.

Ed Morrissey:

If the Obama administration had this information before the vote — and it should be noted that this comes from a single, anonymous source — then it deliberately misled Congress on the cost estimates.  That may not be a crime, but it’s highly unethical at the least, and makes Barack Obama’s claims to operate with transparency absolutely laughable, if true.  As the Prowler’s source points out, the entire reason CMS provided an analysis was to ensure that everyone knew the ramifications of passing this legislation.  Deliberately withholding it would have stripped Congress of that transparency, if that’s indeed what happened.

A Congress interested in maintaining the separation of powers under the Constitution would consider that an affront.  Unfortunately, that’s not the kind of Congress we have at the moment.  A credible inquiry into what the White House knew about the CMS actuarial analysis and when they knew it will require a much different Congress in 2011 … which the voters have an opportunity to provide in November.

Update:  Yid with Lid tips me that the director of the CMS, Richard Forster, has denied this report, according to Fox News.

Update II: Forster denies the report in an interview with Jake Tapper at ABC as well.

Daniel Foster at The Corner

Meredith Jessup at Townhall

Mike Murray at MSNBC:

A little back story: While the nonpartisan Congressional Budget Office estimated that the health-care legislation (Senate bill, plus reconciliation bill) would reduce the deficit by $138 billion over 10 years and $1.2 trillion over the next 10 years, the Office of the Actuary at HHS said last week that the new health-care law would raise health costs $311 billion from 2010 to 2019.

But after some digging, it’s pretty clear that the Spectator report isn’t accurate.

1. The Office of the Actuary didn’t receive the language of the reconciliation bill until March 18 (when the legislation was posted), so the Spectator’s assertion that HHS had a copy of the Actuary’s score a week before congressional passage — on March 22 — doesn’t make sense.

2. Past scores from the Office of the Actuary came out AFTER passage of the legislation. For the House bill that passed on Nov. 7, 2009, the Actuary’s score came out on Nov. 13. And for the Senate bill that passed on Dec. 24, 2009, the Actuary’s score came out on Jan. 8, 2010. This most recent Actuary report is dated April 22.

3. Given points #1 and #2, it’s hard to see how the Actuary’s score was available before the CBO’s, which came out on March 18.

David Weigel:

But HHS tells me that the story isn’t true.

“If this issue hadn’t consumed my entire day so far,” said Richard S. Foster, chief actuary at the Centers for Medicare & Medicaid Services, “I would have found it fairly amusing.” The article, he said, was “completely inaccurate.”

“We began working on the reconciliation bill for the health reform legislation once it was publicly issued on March 18 – three days before the House vote took place on March 21,” said Foster. “Because of the details and complexity of the legislation, it wasn’t possible to estimate the package before the Senate vote.

“We began work on the estimates right away, but we didn’t finalize them until the afternoon of April 22. We finished our memorandum on the health reform act later that same day and immediately sent it to those individuals and organizations that had requested it, including Congressional staff, HHS staff, and media representatives. Consistent with the Office of the Actuary’s longstanding independent role on behalf of Congress, we did not seek approval or clearance from HHS (or anyone else) before issuing our analysis.”

Ben Smith at Politico:

Foster backs up that reporting, and his denial carries a good deal of weight: He’s an independent figure who testified, damagingly, in 2004 that the Bush Administration had — in not dissimilar circumstances — delayed the publication of a report on the cost of the Medicare prescription drug plan; last year, he delivered a report on Medicare cuts that sharply challenged the Obama Administration’s claims that they were holding senior citizens harmless in health care legislation.

Foster emailed, through a spokesman:

An online article in The American Spectator about the most recent analysis by the CMS Office of the Actuary of the Patient Protection and Affordable Care Act is completely inaccurate. We began working on the reconciliation bill for the health reform legislation once it was publicly issued on March 18 – three days before the House vote took place on March 21. Because of the details and complexity of the legislation, it wasn’t possible to estimate the package before the Senate vote. We began work on the estimates right away, but we didn’t finalize them until the afternoon of April 22. We finished our memorandum on the health reform act later that same day and immediately sent it to those individuals and organizations that had requested it, including Congressional staff, HHS staff, and media representatives.
Consistent with the Office of the Actuary’s longstanding independent role on behalf of Congress, we did not seek approval or clearance from HHS (or anyone else) before issuing our analysis.

Someone Is In Custody, But Who They Are, We Don’t Know

MSNBC:

The U.S.-born spokesman for al-Qaida has been captured in Pakistan, government sources said Sunday. But the reports were greeted with skepticism by U.S. intelligence officials, who said Pakistanis might have confused another detainee with Adam Yahiye Gadahn.

Two Pakistani officers told The Associated Press that they had taken part in an operation that netted Gadahn. A senior Pakistani government official also confirmed the arrest. They spoke on condition of anonymity because they were not authorized to release the information.

A Pakistani intelligence source confirmed the report to NBC News, adding that Gadahn was detained in Sohrab Goth, a suburb of Karachi, and was later moved to the capital Islamabad.

CBS:

An “important Taliban militant” was arrested today in Pakistan. But that is where the confusion started.

Earlier it was reported by Pakistani media that intelligence agents had arrested Adam Gadahn, the American-born spokesman for al Qaeda, in an operation in the southern city of Karachi.

It was further reported by the Associated Press and Reuters that Gadahn had been arrested, sourcing security officials.

CBS News was told by sources in the Pakistan government that it was Gadahn, even after U.S. officials refused to confirm it was the California native for whom a $1 million reward has been posted.

Now, CBS News’ Farhan Bokhari in Islamabad writes that earlier reports the detained individual was Gadahn proved false. According to a Pakistan security official who spoke with CBS News on condition of anonymity, the arrested individual is in fact “a Taliban militant leader who is known as Abu Yahya.”

The official said evidence compiled from an interrogation of the suspect and information exchanged with U.S. officials verified the man’s identify.

Ed Morrissey:

Maybe we should have asked Radar Online?

However, don’t lose hope. Apparently, this Abu Yahya is still a big enough figure to be an important capture, if it’s not really Gadahn.  CBS also warns that it still could be Gadahn, but that we won’t know until Pakistan produces the detainee publicly.  When might that be?  I’m going to keep a close eye on Radar to find out.

Joe Gandelman at Moderate Voice:

In doing this site for the past five years we’ve generally tried to observe two fail safe rules:

1. We try not to tout an exclusive breaking news story that originates in a weblog until we see confirmation in the mainstream media, unless it is a site known for solid original reporting.
2. We add a cautionary note in claims of major deaths and arrests of Al Qaeda officials until we see that there has been confirmation from U.S. officials.

Charles Johnson at Little Green Footballs

Spencer Ackerman:

Oh Azzam the American, you fucking fool. I have such a long history with you, including tracking down your old imam — you know, the one you called a “Jew” because he, like, disapproves of murdering innocents? — and your old metalhead friends and talking about how you were into Cannibal Corpse. And now, you motherfucker, you are caught. (Facts of the arrest are still unclear, so I’m not gonna say anything about a ‘Pakistani shift’ for a variety of reasons — getting an al-Qaeda capture is something different than providing Afghan Taliban but whatever — still, no matter what: thank you Pakistan.)

[…]

Update, 7:56 p.m.: Sigh, the New York Times says initial reports were wrong and Gadahn is not actually the guy apprehended. False metal continues.

Rick Moran:

In the AP story linked above, the reporter quoted a “senior government official” that it was indeed, Gadahn. In addition to AP, Reuters, CBS, the New York Times, and the Washington Post independently confirmed that it was Gadahn.

I am going to eat a huge steak dinner, purposely not watch the Oscars (we will watch LOTR Return of the King instead) and then go to bed.

I hope they have this sorted out by morning.

“The First Thing We Do, Let’s Kill All The Lawyers”

Mike Levine:

A day after a conservative group released a video condemning the Justice Department for refusing to identify seven lawyers who previously represented or advocated for terror suspects, Fox News has uncovered the identities of the seven lawyers.

The names were confirmed by a Justice Department spokesman, who said “politics has overtaken facts and reality” in a tug-of-war over the lawyers’ identities.

“Department of Justice attorneys work around the clock to keep this country safe, and it is offensive that their patriotism is being questioned,” said Justice Department Spokesman Matt Miller.

The video by the group Keep America Safe, which dubbed the seven lawyers “The Al Qaeda 7,” is the latest salvo in a lengthty political battle.

For several months, Sen. Chuck Grassley (R-IA) has led an effort to uncover politically-appointed lawyers within the Justice Department who have advocated for Guantanamo Bay detainees or other terror suspects.

“The administration has made many highly questionable decisions when it comes to national security, ” Grassley said in a recent statement. “[Americans] have a right to know who advises the Attorney General and the President on these critical matters.”

An extensive review of court documents and media reports by Fox News suggests many of the seven lawyers in question played only minor or short-lived roles in advocating for detainees. However, it’s unclear what roles, if any, they have played in detainee-related matters since joining the Justice Department.

Daniel Foster at The Corner:

The names of the seven DOJ lawyers who represented or advocated for Guantanamo Bay detainees have been uncovered by Fox News and confirmed by the Justice Department. Looks like great investigative work from Fox. And they play it pretty even, saying that most of the lawyers in question “played only minor and short-lived roles in advocating for detainees,” and pointing out that the Bush Justice Department employed lawyers who had been similarly engaged.

The one exception might be Assistant Attorney General Tony West, who works in DOJ’s Civil Division. West represented “American Taliban” John Walker Lindh for several years.

Justin Elliott at TPM:

In Liz Cheney’s worldview, Rudy Giuliani is a disloyal al Qaeda sympathizer.

Let us explain.

Yesterday, Cheney’s outfit, a group called Keep America Safe, went up with a blistering ad that attacked Justice Department lawyers who previously represented Guantanamo detainees and are now working on detainee issues. The ad dubbed the lawyers “the Al Qaeda Seven” and asked “whose values do they share?” while flashing an image of Osama bin Laden.

It turns out that among the many high-profile lawyers who have represented so-called “terrorist detainees” is a top attorney with Rudy Giuliani’s firm, Bracewell Giuliani, according to court documents examined by TPMmuckraker.

Bracewell Giuliani Attorney Carol Elder Bruce, a distinguished white collar litigator, is listed as counsel in two detainee habeas cases, EL-MASHAD et al v. BUSH et al and ALLADEEN et al v. BUSH et al. Both are in the U.S. District Court in the District of Columbia.

El-Mashad, an Egyptian national who was captured near the Pakistan-Afghanistan border in late 2001, was released to Albania late last month.

To be clear, there is absolutely nothing wrong with attorneys representing detainees. In fact, the work — usually done on a pro bono basis — is seen by many as admirable.

As the DOJ pointed out in a letter to Republican senators who argue that lawyers who represented detainees have a conflict of interest, at least 34 of the 50 largest U.S. law firms have either represented detainees or filed amicus briefs in support of detainees.

Meghan Clyne at Daily Caller:

Senator Charles Grassley, Republican of Iowa, has been relentless in trying to determine which lawyers at the Department of Justice previously defended, advocated for or worked on issues pertaining to Guantanamo Bay detainees and other alleged terrorists. While he’s at it, he may want to expand his inquiry — to the halls of the White House itself.

At least two attorneys hired to serve in the White House counsel’s office — part of President Obama’s in-house team of legal advisers — represented Guantanamo detainees in their previous legal careers.

While an associate at the Washington office of the prestigious law firm Wilmer Cutler Pickering Hale & Dorr, Michael Gottlieb — tapped for a White House associate counsel position — was part of the team that successfully argued on behalf of alleged terrorist Lakhdar Boumediene (of Boumediene v. Bush fame).

And while a student at Yale Law School, one of Gottlieb’s fellow associate counsels, Jonathan Kravis, volunteered his time as part of the team that ultimately secured legal victory for alleged Yemeni terrorist Salim Hamdan in Hamdan v. Rumsfeld.

Adam Serwer at The American Prospect:

The “Gitmo Nine” aren’t terrorists. They weren’t captured fighting for the Taliban. They’ve made no attempts to kill Americans. They haven’t declared war on the United States, nor have they joined any group that has. The “Gitmo Nine” are lawyers working in the Department of Justice who fought the Bush administration’s treatment of suspected terrorists as unconstitutional. Now, conservatives are portraying them as agents of the enemy.

In the aftermath of September 11, the Bush administration tried to set up a military-commissions system to try suspected terrorists. The commissions offered few due process rights, denied the accused access to the evidence against them, and allowed the admission of hearsay — and even evidence gained through coercion or abuse. The Bush administration also sought to prevent detainees from challenging their detention in court. Conservatives argued that the nature of the war on terrorism justified the assertion of greater executive power. In case after case, the U.S. Supreme Court sided with the administration’s critics.

“These lawyers were advocating on behalf of our Constitution and our laws. The detention policies of the Bush administration were unconstitutional and illegal, and no higher a legal authority than the Supreme Court of the United States agreed,” says Ken Gude, a human-rights expert with the Center for American Progress, of the recent assault on the Justice Department. “The disgusting logic of these attacks is that the Supreme Court is in league with al-Qaeda.”

The attorneys who challenged the Bush administration’s national-security policies saw themselves as fulfilling their legal obligations by fighting an unconstitutional power grab. At heart, this was a disagreement over process: Should people accused of terrorism be afforded the same human rights and due process protections as anyone else in American custody? But rather than portray the dispute as a conflict over what is and isn’t within constitutional bounds, conservatives argue that anyone who opposed the Bush administration’s policies is a traitor set to undermine America’s safety from within the Justice Department.

“Terrorist sympathizers,” wrote National Review‘s Andrew McCarthy in September, “have assumed positions throughout the Obama administration.”

[…]

By this point the rest of the conservative media had begun taking up the cause, referring to the lawyers Weisch had mentioned as “The Gitmo Nine.” At the Washington Examiner, Byron York accused Holder of “stonewalling” Congress. “Who are the Gitmo 9?” McCarthy demanded to know from his perch at National Review. Then, last Friday, Republicans responded to Weisch, accusing the Justice Department of being “at best nonresponsive and, at worst, intentionally evasive.” The Washington Times followed up, echoing McCarthy’s demand for the identities of the so-called Gitmo Nine. By that point, two Justice Department lawyers, Deputy Solicitor General Neal Katyal and Human Rights Watch former senior counsel Jennifer Daskal, had already been identified. Unlike the Republican senators, whose concerns were centered around “potential conflicts of interest,” the Times editorial argued that “the public has a right to know if past work for terrorist detainees has biased too many of Mr. Holder’s top advisers.” It was a delicate way of suggesting that lawyers who were holding the government to its constitutional obligations were in fact, if not agents of, sympathetic to al-Qaeda.

On Tuesday, all attempts at subtlety were abandoned. Keep America Safe, the conservative advocacy group which was founded by Liz Cheney to defend torture and oppose civilian trials for suspected terrorists and which has close ties to McCarthy, turned the “Gitmo Nine” into the “al-Qaeda Seven.” The group put out a Web video demanding that Holder name the other Justice Department lawyers who had previously represented terrorist detainees or worked on similar issues for groups that opposed the Bush administration’s near-limitless assumption of executive power. “Whose values do they share?” a voice asks ominously. “Americans have a right to know the identity of the al-Qaeda Seven.” The ad echoed McCarthy’s references to the “al-Qaeda bar” from months earlier.

“This is exactly what Joe McCarthy did,” said Gude. “Not kind of like McCarthyism; this is exactly McCarthyism.”

The attorneys who secured greater due process rights for detainees weren’t attempting to prevent terrorists from being punished — they were attempting to prevent the government from assuming limitless power to imprison people indefinitely based on mere suspicion. Not all of those fighting the Bush administration’s policies even believed that terrorists should be tried in civilian courts. Katyal, who litigated the 2006 Hamdan v. Rumsfeld case in which the Supreme Court decided in the detainees’ favor, advocated for using military courts martial — and later, authored an op-ed for The New York Times alongside former Bush lawyer Jack Goldsmith arguing for a new “national security court” to try terrorists. Still, Katyal held that Bush’s general policy for trying terrorists “closely resemble those of King George III.”

Michelle Malkin:

You have a right to know. Now you do, thanks to the news organization that the White House communications team has spent the last year trying to delegitimize.

Spencer Ackerman at Washington Independent:

Via Ben Smith, Keep America Safe, the Cheneyite national-security revival tour, has a new video out insinuating that Justice Department attorneys who represented Guantanamo detainees are sympathetic to al-Qaeda, a brazen slander that Sen. Chuck Grassley (R-Iowa) put forward last week against such DOJ officials as Neal Katyal and Jennifer Daskal. Rushing to their defense is retired Air Force Col. Morris Davis, the chief prosecutor of the Cheneys’ beloved military commissions, who told me the attacks are “outrageous.”

“Neal in particular was and is one of the sharpest and hardest-working attorneys I’ve known in the 27 years I’ve been practicing law,” said Davis, who supervised prosecutions at Guantanamo from 2005 to 2007. “It is absolutely outrageous for the Cheney-Grassley crowd to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters. You don’t hear anyone refer to John Adams as a turncoat for representing the Brits in the Boston Massacre trial.” Davis, of course, opposed Katyal on the famous case of Guantanamo Bay detainee Salim Ahmed Hamdan’s habeas corpus rights — a case that Katyal won in the Supreme Court, striking down the first iteration of the military commissions. “He was the epitome of professionalism, and I can’t say that about a lot of the folks involved” in the commissions, Davis continued.

“If you zealously represent a client, there’s nothing shameful about that,” said the retired Air Force colonel. “That’s the American way.”

Thomas Joscelyn at The Weekly Standard:

Do “war on terror” detainees deserve full constitutional rights? My hunch is that most Americans would say no. And, ironically, so has Neal Katyal, when it comes to the detainees held at Bagram. Katyal has reportedly defended the indefinite detention of terrorist suspects as a member of the Obama administration.

This speaks well of Katyal as it shows he is capable of making a responsible national security argument. Katyal’s defenders say he has always seen a difference between Bagram and Guantanamo because, well, one is at an airbase in Cuba and the other is the middle of a warzone in Afghanistan.

But leave it to a lawyer to argue that the Constitution is under assault if detainees are tried by a military commission in Cuba, while everything is just fine if (all else equal) they are held indefinitely without habeas rights in Afghanistan.

One other note about Katyal: He has lamented the slow pace at which the military commissions moved during the Bush years. And they certainly did move at a snail’s pace. But as Time magazine has reported, Katyal helped build “a defense that delayed Hamdan’s military tribunal for years as it gradually made its way through the courts.” That is, those delays are owed, in large part, to Katyal’s handiwork.

[…]

Other lawyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).

Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.

Glenn Greenwald:

We all have a tendency to look back on shameful events in our nation’s history — slavery, the internment of Japanese-Americans, the McCarthyite witch hunts — and like to believe that we would have been on the right side of those conflicts and would have vigorously opposed those responsible for the wrongs.  Here we have real, live, contemporary McCarthyites in our midst — Liz Cheney and Bill Kristol — launching a repulsive smear campaign, and we’ll see what the reaction is and how they’re treated by our political and media elites.

UPDATE: Marc Thiessen in WaPo

Greenwald on Thiessen

Ben Smith at Politico

Spencer Ackerman at Washington Independent

Michelle Malkin

UPDATE #2: Conor Friedersdorf on Thiessen

Michael Isikoff in Newsweek

William Kristol in The Weekly Standard

Julian Sanchez

John Tabin at The American Spectator

Paul Mirengoff at Powerline

Cesar Conda at The Corner

And Ken Starr on Countdown:

UPDATE #3: Mickey Edwards at The Atlantic

Jacob Sullum at Reason

Daniel Drezner

UPDATE #4: Freidersdorf

Orin Kerr

Andy McCarthy in USA Today

Conor Friedersdorf

Jonah Goldberg at The Corner

More Conor

UPDATE #5: Debra Burlingame and Thomas Joscelyn in the WSJ

Andy McCarthy

More McCarthy

Jonah Goldberg

More McCarthy

UPDATE #6: Jonathan Chait in TNR

UPDATE #7: Justin Elliott at TPM

My, That Is An Exceptional 6 Train

Rich Lowry and Ramesh Ponnuru in National Review:

The Left’s search for a foreign template to graft onto America grew more desperate. Why couldn’t we be more like them — like the French, like the Swedes, like the Danes? Like any people with a larger and busier government overawing the private sector and civil society? You can see it in Sicko, wherein Michael Moore extols the British national health-care system, the French way of life, and even the munificence of Cuba; you can hear it in all the admonitions from left-wing commentators that every other advanced society has government child care, or gun control, or mass transit, or whatever socialistic program or other infringement on our liberty we have had the wisdom to reject for decades.

Matthew Schmitz at The League:

Lowry and Ponnuru seem to believe that mass transit is a “socialistic program” and an “infringement on our liberty.” Presumably they think this because mass transit is built and administered by the government and supported, quite often, by taxes. But the exact same thing is true of highways. Would Lowry and Ponnuru denounce the Interestate system as socialistic on the same grounds?

Their casual slander also dishonors one of the recently passed heroes of the conservative movement, Paul Weyrich. Weyrich co-founded the Heritage Foundation and founded the Free Congress Foundation. Lowry and Ponnuru, who both probably knew him, also know that he was as American and un-socialistic as they come. Weyrich realized that transit was, in some cases, an eminently reasonable way of transporting people. If  Lowry and Ponnuru are unsettled by the fact that Europeans have more transit than we do, they should look back to the time when America had both more transit and less government than Europe did, or than it does now. If you’d like to read more on the conservative case for transit, see David Schaengold here.

Matthew Yglesias:

But of course they have nothing to say about genuine infringements of liberty like minimum parking requirements, maximum lot occupancy rules, building height limits, prohibitions on accessory dwellings, etc. that are mainstays of America’s centrally planned suburbs. That’s because to them what really matters isn’t socialism or liberty (certainly nobody who cares about liberty could be as enthusiastic about torture as National Review writers are) but Americanness. Even here, though, their critique falls badly flat. The world’s largest subway systems are in Japan and South Korea—not socialistic Europe—followed by New York City right here in the United States. Multiple-unit train control was invented in Chicago, as part of the world’s first electrically driven railway. I believe that all of the world’s 24-hour rapid transit systems (NYC Subway, Chicago L, NY-NJ PATH) are in the United States of America.

Brad DeLong:

Can people please stop bringing forward Ramesh Ponnuru as a “reasonable conservative” now?

Damon Linker at TNR on the rest of the essay:

Lowry and Ponnuru’s thesis—that President Obama is an enemy of “American exceptionalism”—is hardly original. It is so widely held and so frequently asserted on the right, in fact, that it can almost be described as conservative conventional wisdom. Still, NR’s treatment of the subject stands out. Lowry and Ponnuru aim for comprehensiveness, and they maintain a measured, thoughtful tone throughout their essay, marshalling a wide range of historical evidence for their thesis and making well-timed concessions to contrary arguments. It’s hard to imagine this key conservative claim receiving a more cogent and rhetorically effective defense. Which is precisely what makes the essay’s shortcomings so striking. While its authors clearly mean it to stand as a manifesto for a resurgent conservative moment, the essay far more resembles a lullaby—a comforting compilation of consoling pieties set to a soothingly familiar melody. The perfect soundtrack to a peaceful snooze.

Let’s begin at the beginning, with definitions. Lowry and Ponnuru aim to convince their readers that the President of the United States denies the idea that lies at the core of American identity: that the country is exceptional. But what makes America exceptional? This is what the authors tell us: Americans affirm a creed that upholds “liberty, equality (of opportunity and respect), individualism, populism, and laissez-faire economics.” These principles then combine with “other aspects of the American character—especially our religiousness and our willingness to defend ourselves by force—to form the core of American exceptionalism.”

Some of this is faintly ridiculous. (Is anything less exceptional in human history than a country’s willingness to defend itself by force?) As for the rest, it’s either a string of American banalities and clichés—or an abstract of the Republican Party platform. The next several paragraphs of the essay make it very clear that it’s the latter. That’s right: Lowry and Ponnuru expect their readers to believe that what makes our country exceptional is that large numbers of Americans affirm the ideology of the modern conservative movement. But that’s not quite right. Through long stretches of the essay they go much further—to imply that America is exceptional because the nation’s creed is the ideology of the modern conservative movement.

Follow the bouncing ball: the fact that “a profit-seeking company” founded Jamestown and that Puritan merchants wrote “In the name of God and of profit” at the top of their ledgers; that, in a “telling coincidence,” Adam Smith’s “free-market classic” The Wealth of Nations was published in the same year as the Declaration of Independence; that Benjamin Franklin’s name “comes from the Middle English meaning freeman, someone who owns some property”; that Abraham Lincoln supposedly hated few things more than “economic stasis”—all of these and many other anecdotes are supposed to add up to an endorsement of “the American economic gospel” (read: libertarian economic gospel) about “wealth and its creation.” Meanwhile, other cherry-picked facts in later paragraphs serve to highlight the American fondness for democratic elections, the country’s incorrigible patriotism and religiosity, and its “missionary impulse” to “export our model of liberty” to the world, often at the point of a gun.

More Yglesias:

In this telling, there’s something insidious about asking if they don’t do something better someplace else. But of course another way of looking at it is that you by definition can’t find examples of alternatives to the US status quo by looking at the US. That’s why you regularly see the Cato Institute touting Chile’s pension system or Heritage extolling the virtues of Sweden’s K-12 education or David Frum talking up French nuclear power. After all, we’ve never attempted to shift from a guaranteed pay-as-you-go pension system to a mandatory savings one in the United States. Nor do we have any examples of widespread operation of public elementary schools by for-profit firms. Nor do we have a robust nuclear power sector. So if you want to explore these ideas—ideas that conservatives often do want to explore—you need to look at models from abroad.

And there’s nothing wrong with that! So why isn’t it okay for liberals to talk about French health care or Finnish education or Danish energy policy? As Barack Obama once said, when you look at the right sometimes it’s like they’re proud of being ignorant.

Mark Murray at MSNBC:

And the cover story in the latest National Review, entitled “Defend Her: Obama’s Threat to American Exceptionalism,” contends: “The president has signaled again and again his unease with traditional American patriotism. As a senator he notoriously made a virtue of not wearing a flag pin. As president he has been unusually detached from American history: When a foreign critic brought up the Bay of Pigs, rather than defend the country’s honor he noted that he was a toddler at the time. And while acknowledging that America has been a force for good, he has all but denied the idea that America is an exceptional nation.”

Of course, Obama was asked whether he believes in American exceptionalism while visiting Europe during the NATO summit. His response: “I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism. I’m enormously proud of my country and its role and history in the world. If you think about the site of this summit and what it means, I don’t think America should be embarrassed to see evidence of the sacrifices of our troops, the enormous amount of resources that were put into Europe postwar, and our leadership in crafting an Alliance that ultimately led to the unification of Europe. We should take great pride in that.”

That question Obama was asked defined American exceptionalism as the United States being “uniquely qualified to lead the world.” Historians typically regard American exceptionalism as why the U.S. didn’t have socialist revolutions or strong working-class movements like most of Europe did in the 19th and early 20th centuries.

Yet the conservative definition of American exceptionalism — particularly in the National Review article — is aimed at Obama’s efforts to reform the nation’s health-care system, enact cap-and-trade (which, ironically, is based on market principles), etc. Here’s National Review summing up what American liberals want: “Why couldn’t we be more like them — like the French, the like the Swedes, like the Danes? Like any people with a larger and busier government overawing the private sector and civil society?”

But if you read Obama’s speeches — from the president campaign and now as president — you see a president with a different idea of American exceptionalism: America’s unique ability to evolve and become a more perfect union. “This union may never be perfect,” he said in his famous ’08 speech on race, “but generation after generation has shown that it can always be perfected.”

“In reaffirming the greatness of our nation, we understand that greatness is never a given,” he said in his inaugural address. “It must be earned.”

Here’s what he said in his Berlin speech during the presidential campaign: “We’ve made our share of mistakes, and there are times when our actions around the world have not lived up to our best intentions. But I also know how much I love America. I know that for more than two centuries, we have strived — at great cost and great sacrifice — to form a more perfect union; to seek, with other nations, a more hopeful world.”

So it’s not that Obama doesn’t think America is an exceptional nation; his own words debunk that critique.

Rather, it’s that conservatives and liberals have two very different ideas of what “exceptional” means.

UPDATE: Matthew Lee Anderson

Samuel Goldman at PomoCon

James Poulos at PomoCon

UPDATE #2: Conor Friedersdorf at The American Scene

Victor Davis Hanson at The Corner

Friedersdorf on Hanson

DiA at The Economist

Greg Scoblete

Daniel Larison

UPDATE #3: Lowry and Ponnuru responds to critics

John Holbo on the reponse

Matthew Yglesias on the response

UPDATE #4: Friedersdorf responds to the response

Goldman responds to the response

Schmitz responds to the response

UPDATE #5: More Larison

UPDATE #6: Peter Lawler

UPDATE #7: James Poulos and Robert Farley on Bloggingheads

Memorandum, Mon Amour

Michael Isikoff at Newsweek:

A crucial CIA memo that has been cited by former Vice President Dick Cheney and other former Bush administration officials as justifying the effectiveness of waterboarding contained “plainly inaccurate information” that undermined its conclusions,  according to Justice Department investigators.

Cheney has publicly called for the release of the CIA’s still classified memo and another document, insisting their disclosure will bolster his claim that the rough interrogation tactics he vigorously pushed for while in the White House yielded actionable intelligence that foiled terrorist plots against the United States.

But a just released report by the Justice Department’s Office of Professional Responsibility into the lawyers who approved the CIA’s interrogation program could prove awkward for Cheney and his supporters. The report provides new information about the contents of one of the never released agency memos, concluding that it significantly misstated the timing of the capture of one Al Qaeda suspect in order to make a claim that seems to have been patently false.

[…]

The CIA memo, called the Effectiveness Memo, was especially important because it was relied on by  Steven G. Bradbury, then the Justice Department’s acting chief of the Office of Legal Counsel, to write memos in 2005 and 2007 giving the agency additional legal approvals to continue its program of “Enhanced Interrogation Techniques.”  The memo reviewed the results of the use of EITs – which included waterboarding, sleep deprivation, and forced nudity – mainly against two suspects” Abu Zubaydah and Khalid Sheikh Mohammed, the report states.  One key claim in the agency memo was that the use of the CIA’s enhanced interrogations of Zubaydah led to the capture of suspected “dirty bomb’ plotter Jose Padilla.   “Abu Zubaydah provided significant information on two operatives, Jose Padilla and Binyam Mohammed, who planned to build and detonate a ‘dirty bomb’ in the Washington DC area,” the CIA memo stated, according to the OPR report. “Zubaydah’s reporting led to the arrest of Padilla on his arrival in Chicago in May 2003 [sic].”

But as the Justice report points out, this was wrong.   “In fact, Padilla was arrested in May 2002, not 2003 … The information ‘[leading] to the arrest of Padilla’ could not have been obtained through the authorized use of EITs.” (The use of enhanced interrogations was not authorized until Aug. 1, 2002 and Zubaydah was not waterboarded until later that month.) “ Yet Bradbury relied upon this plainly inaccurate information” in two OLC memos that contained direct citations from the CIA Effectiveness Memo about the interrogations of Zubaydah, the Justice report states.

Jason Linkins at Huffington Post:

Over at the Plum Line, Greg Sargent says, “This also appears to vindicate claims by former FBI interrogator Ali Soufan, who said he obtained all the crucial info from Zubaydah through non-enhanced methods.” It also appears to be bad news for Marc Thiessen, as well.

But there are complications: what if the information was obtained through the unauthorized use of torture? Let’s recall that in my conversation with Abu Zubaydah attorney Brent Mickum, he contended that his client was subjected to torture in the period between his original capture and the CIA receiving guidance from Jay Bybee.

UPDATE: As a reminder, the International Committee of the Red Cross reports that a wide variety of torture techniques were used on Abu Zubaydah, and others. In that report, Zubaydah told interviewers that he was subjected to waterboarding, and that it caused “considerable pain” because he had “undergone surgery three months earlier.” It’s frustratingly inspecific, but Abu Zubaydah is known to have been operated on soon after his capture on March 28, 2002, and Bybee didn’t advise C.I.A. interrogators until July 24th of the same year.

James Fallows:

The OPR report: this era’s ‘Hiroshima’

[…]

If you want to argue that “whatever” happened in the “war on terror” was necessary because of the magnitude and novelty of the threat, then you had better be willing to face what the “whatever” entailed. Which is what this report brings out. And if you believe — as I do, and have argued through the years — that what happened included excessive, abusive, lawless, immoral, and self-defeating acts done wrongly in the name of American “security,” then this is a basic text as well.

To conclude the logical sequence, if not to resolve this issue (which will be debated past the time any of us are around), you should then read the recent memo by David Margolis, of the Justice Department, overruling the OPR’s recommendation that Yoo and Bybee should be punished further. It is available as a 69-page PDF here. Margolis is a widely-esteemed voice of probity and professional excellence inside the Department. What is most striking to me as a lay reader is how much of his argument rests not on strictly legal judgments but rather on a historical/political assertion.

The assertion is that in the immediate aftermath of 9/11, anxiety was so high, fears were so great, and standards of all sorts were so clearly in abeyance, that normal rules about prudence and arm’s-length deliberation cannot fairly be applied in retrospect. Ie, “you had to be there.” Perhaps. (And, of course, we all were there.) In normal life we recognize the concept of decisions made in the heat of the moment, under time pressure, and without complete info. But it is worth noting that the central “torture memos” were from mid-summer 2002, nine months after the initial attacks — by people whose job was supposed to be providing beyond heat-of-the-moment counsel.

The “torture years” are now an indelible part of our history. The names Bybee and Yoo will always be associated with these policies. Whether you view them as patriots willing to do the dirty work of defending the nation — the Dick Cheney view, the 24 view, which equates the torture memos with Abraham Lincoln’s imposition of martial law — or view them as damaging America’s moral standing in ways that will take years to repair (my view), you owe it to yourself to read these original documents. I tried to make this point in more halting real-time fashion yesterday in a talk with Guy Raz on NPR.

Bill Burck and Dana Perino at The Corner:

On February 19, Attorney General Eric Holder took part in the time-honored Washington tradition of dumping undesired news on Friday afternoons or evenings. After weeks of leaks, the Justice Department officially exonerated Bush-era lawyers John Yoo and Jay Bybee, the authors of the original legal opinions on the lawfulness of the CIA interrogation program, which are known pejoratively as the “torture memos” to critics.

This is bad news for Holder and certain other Obama appointees at Justice — it undermines the story they’ve been telling for years that the lawyers who found the CIA program lawful were sadistic criminals committed to torturing poor souls such as Khalid Sheik Muhammad — but it is a vindication of an important principle that, prior to the Holder reign, had been adhered to across administrations: honestly held legal and policy opinions are not cause for prosecution or professional discipline.

For years now this principle has been under sustained attack by hard-core left-wing congressional partisans such as Rep. John Conyers and Sen. Patrick Leahy. It’s not much of a stretch to imagine some of the more wild-eyed among them searching for ways to revoke the law licenses of conservative Supreme Court justices. Fortunately, this country is not Venezuela — at least not yet; we should not rest easy.

This was a very narrow escape that came down to the brave decision of a long-time career official at Justice named David Margolis. Margolis is a widely respected 40-year veteran who has been tasked over the years with handling many of the more sensitive internal inquiries at the Justice Department. One of his responsibilities — which he has performed honorably for a number of different attorneys general in Democratic and Republican administrations — has been to oversee inquiries conducted by lawyers in the little-known Office of Professional Responsibility, or OPR. OPR is the office that recommended Yoo and Bybee be subject to disciplinary proceedings. Margolis rejected OPR’s recommendation and most of its analysis.

OPR is the equivalent of internal affairs at a police department, conducting inquiries of alleged misconduct by Justice Department lawyers and other staff and making disciplinary recommendations. OPR has an important role to play to ensure that misconduct is discovered and punished. But OPR’s investigation of the legal advice provided by Yoo and Bybee was, by its own admission, extremely unusual.

OPR annointed itself to review the constitutional and legal analysis of Bybee and Yoo while they were leading the Office of Legal Counsel, or OLC. Along with the Solicitor General’s Office — which, among other things, represents the federal government in cases before the Supreme Court — OLC employs the Justice Department’s best lawyers on the most difficult constitutional and legal issues. OLC is tasked with providing legal advice to the entire federal government, including the White House.

We don’t mean to be insulting, but the plain fact is that OPR is not, and has never been, equipped to second-guess OLC. The office’s role is a limited one focused on ethical violations; it is not staffed with experts on constitutional law or national security. It would be preposterous to rely on OPR’s judgment about hard questions of constitutional and statutory law over that of OLC or the Solicitor General’s Office. As Andy McCarthy has said, “having OPR grade the scholarship of OLC is like having the Double-A batting coach critique Derek Jeter’s swing.”

Sonny Bunch at Doublethink:

The case against Yoo and Bybee was always about criminalizing policy differences. Sure, it was talked about in heated rhetoric — War crimes!! Torture!! Crushed testicles!! — but the simple fact of the matter is that John Yoo was asked to render an opinion on the legal questions at hand, not to make policy or carry out that policy. Making the rendering of an honest opinion illegal strikes me as an incredibly pernicious attack on the independence of those working in the government.

Scott Horton at Harper’s:

As released, the OPR report is heavily redacted. No explanation is provided for the redactions, but the original contains a “top secret” classification, and it is likely that executive privilege, attorney-client privilege, and national security classifications figure in the decisions. Nevertheless, placement and circumstance suggest that a large number of redactions describe in detail meetings and discussions between the White House, the CIA, and the OLC lawyers working on the report.

Considering President Obama’s decision to terminate torture programs authorized by the OLC memos, all of which had already been rescinded before President Bush left office, it is not apparent how national security requires these communications to be kept secret. Far more likely, the redactions have been made to protect political figures at the White House and CIA, and potentially other agencies, from embarrassment. This is not a legitimate reason to black out the text.

A good example of potentially illegitimate redactions are those concerning repeated discussions about drafting the torture memoranda, which involve an unnamed OLC lawyer in addition to John Yoo and Jay Bybee. On p. 258, we learn that this lawyer “was a relatively inexperienced attorney when the Bybee and Yoo memos were being drafted. Although she appears to have made errors of research and analysis in drafting portions of the Bybee and Yoo memos, her work was subject to Yoo’s and Bybee’s review and approval. We therefore conclude that she should not be held professionally responsible for the incomplete and one-sided legal advice in the memoranda.” One woman working directly with John Yoo at OLC at this time was Jennifer Koester Hardy, now a partner in the Washington office of Kirkland & Ellis LLP. In an apparent redaction oversight, Hardy is mentioned by name in a footnote.

Why was Hardy’s name redacted? She played an obvious and important role in the production of the documents. She made serious errors, which appear to be driven less by flaws in research than by a desire to produce an opinion that had the conclusions that David Addington wanted. The failure to identify key precedents and the malicious misconstruction of precedent is as much her fault as that of Bybee and Yoo. Hardy is also an ideological fellow traveler of Yoo’s and Bybee’s. In the midst of her work at the Justice Department, she took time off to serve as a clerk for Justice Clarence Thomas, with whom John Yoo also clerked. Moreover, while she was clerking for Thomas, he authored opinions relating to detentions policy matters on which Hardy was plainly engaged at the Justice Department. Like Bybee, Yoo and Thomas, Hardy is also active in the Federalist Society. Finally, her connection with the law firm of Kirkland & Ellis is important for several reasons. Mark Filip, who worked aggressively to derail or block the OPR report, and whose highly partisan engagement on the matter is disclosed in several of the documents disclosed on Friday, departed the Justice Department to become Ms. Hardy’s partner at Kirkland. It’s certainly possible that he was engaged in discussions with Kirkland in late January 2009, when he issued his opinion about the OPR report. The Kirkland firm has emerged as a distinctly Republican powerhouse, heavily populated with the party’s neoconservative wing, such as Jay Lefkowitz, Ken Starr, John Bolton, and Michael Garcia.

So why would Hardy’s name be redacted? Disclosure of her name might get in the way of a future political appointment. It might also lead to a review by a local bar association of her involvement with the torture memos, something which Margolis is keen to obstruct.

Emily Bazelon at Double X:

The lawyer who helped John Yoo write the August 2002 torture memos was a law school classmate of mine at Yale. Her name is Jennifer Koester Hardy (when I knew her, it was Jennifer Koester; she has since gotten married). Her name was supposed to be redacted from the Justice Department ethics investigation into Yoo and Jay Bybee, his boss in the Bush Office of Legal Counsel. But a footnote identifies her, as TPM Muckraker tells us. She also co-wrote a law review article with Yoo. And in a July 2002 letter to CIA counsel John Rizzo, about what is necessary to establish torture as a crime, Yoo tells Rizzo to direct questions to him or to Koester.

After she worked with Yoo in 2002, Jen clerked for Clarence Thomas—she was his third Yale clerk, according to this list. Then I think she went back to the Justice Department. Now she’s a lawyer at Kirkland & Ellis. In law school, she was hugely involved with the Federalist Society. I remember her as a religious Christian. Also as principled in her beliefs—thoughtful rather than knee-jerk. She had a lot of friends, many of whose politics she didn’t share. We graduated in 2000, before 9/11 put terrorism and national security on the radar and I don’t remember talking to her about anything related (nor do the classmates I talked to about her today). What we do remember is that Jen was a lot of fun. She helped mock the faculty in the end-of-year Law Revue spoof. She was talkative and smiled a lot. The DoJ investigators from the Office of Legal Counsel conclude that because she was inexperienced when she worked with Yoo, “she should not be held professionally responsible for the incomplete and one-sided legal advice in the memoranda.”

Emptywheel at Firedoglake

Adam Serwer at Coates place:

The theological justification for al Qaeda’s wholesale slaughter of civilians was provided by Sayyid Imam al-Sharif, also known as Dr. Fadl, one of the founding fathers of al Qaeda. Because the murder of innocents is forbidden in Islam and the murder of Muslims in particular, Ayman al-Zawahiri and Osama bin Laden required some sort of theological framework for justifying terrorism. This was provided by al-Sharif, who essentially argued in his book, “The Compendium of the Pursuit of Divine Knowledge,” that apostates could be murdered, and that approach, takfir (which has come to be known as takfirism) allowed al Qaeda to, for all intents and purposes, kill anyone they wanted without violating the laws of Islam by declaring them to be apostates. In other words, Dr. Fadl helped provided a theological justification for something that everyone involved knew was wrong.

The legal memos justifying torture aren’t very different in terms of reasoning–it’s clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism. They worked backwards from this conclusion, and ethics officials at the Department of Justice, we now know, decided that they they had violated professional standards in doing so. Whereas al-Zawahiri and bin Laden turned to al-Sharif for a method to circumvent the plain language of the Koran, Bush and Cheney went to Yoo and Jay Bybee to circumvent the plain language of the law. Most Islamic scholars, just like most legal experts, reject their respective reasoning as unsound.

The torture memos–indeed, all of the pro-torture arguments rest on a similar intellectual themes to the takfiris. Suspected terrorists are “illegal enemy combatants”, outside the framework of laws that would otherwise guide us. Just as the takfiris justify the killing of even self-identified Muslims by excommunicating them as “infidels”, torture apologists argue that even American citizens like Jose Padilla who are accused of being terrorists become legal “apostates” without any rights the president is bound to respect. These are extraordinary circumstances, this is an extraordinary war–and so, the Bush administration turned to Yoo, a man who believes the president is bound by no laws during wartime: he can murder a village of innocent civilian non-combatants just as surely as he can crush the testicles of a child or deploy the military against residents of the United States. The architects of torture are the intellectual mirror image of their declared enemies, depending on the perceived inhumanity of their foes to justify monstrous actions. It’s worth noting however, that the Bush administration did not take full advantage of the wrongs that the lawyers in their Office of Legal Counsel would have enabled. My point is not to equate the deeds of AQ with the deeds of the Bush administration–merely to point out justification for acts that are on their face unjustifiable take a similar intellectual path.

UPDATE: Emptywheel

New York Times

Scott Horton at Harper’s

Daphne Eviatar

UPDATE #2: John Yoo at The Philly Inquirer

Stenographer Is The Epithet Of The Week

Faiz Shakir at Think Progress:

Does Cheney “have a thing with Politico?” MSNBC’s Chris Matthews asked Politico’s Jonathan Martin today on Hardball. “He uses you like he’d use Drudge or somebody,” Matthews charged. A stunned Martin had no response for why Cheney has been so willing to give Politico “exclusives.” “You’d have to ask the Vice President, Chris,” Martin responded, “I’m not sure.” Matthews kept pressing the issue:

MATTHEWS: I mean, he’s got his own news conduit.

MARTIN: You know, we aggressively report on both sides.

MATTHEWS: It’s not reporting. He feeds you this stuff. … I do like Politico. He’s feeding you guys this crap. […]

What’s he call up and say? “I got a hot one for you, Jon. Can you take — what’s your email address?” Is that what he does?

Greg Sargent:

I asked Politico editor John Harris whether Politico had aired too many Cheney statements and claims with too little scrutiny or regard for their news value, as many alleged when Politico published a lengthy Cheney broadside on Obama’s “weakness.” Harris replied:

1. I thought the Cheney comments were newsworthy, which is why they drew such notice by other news organizations and columnists. In fact, it seemed to me that the people who found Cheney’s comments most objectionable were the ones who found them most newsworthy.

2. If you look at the other stories we ran at the same time as the Cheney quote there was a Josh Gerstein piece leading the site comparing Obama’s response to Bush’s after the 2001 shoe bomber and debunking the notion that Obama’s response was more sluggish. We also had a piece looking at GOP politicization of national security.

3. Trying to get newsworthy people to say interesting things is part of what we do. Also in December we had a long Q and A with the other prominent former vice president Al Gore. That story might also have looked to some like providing an uncritical platform if you viewed it only isolation.

It seems clear that some criticism of Politico is overly simplistic. It’s simply a fact that it does good big picture stories that change the conversation, and that it breaks news useful to both sides. But it’s unclear why Cheney’s continuing attacks on Obama as weak should continue to be deemed news, or why scrutiny of GOP strategy in other cases (or the Gore interview) should make it okay that Cheney is constantly given a free pass. My bet is even some at Politico see the constant elevation of Cheney as too cozy by half.

Andrew Sullivan:

But the point is that there was no q and a with Cheney. There was just a printing of his statement, given exclusively to Politico. But Harris’s reply requires a follow-up: “trying to get newsworthy people to say interesting things” is his paraphrase of what was going on. So did Allen actually reach out to Cheney and ask him for a comment? Or did Cheney call Allen?

I think we need transparency from a news organization, don’t you? Did Allen or Cheney initiate the statement’s release via Politico?

Jason Linkins at Huffington Post

Glenn Greenwald:

Throughout the year, Politico has repeatedly published as “news articles” comments from Dick Cheney, which its “reporters” faithfully write down and print with virtually no challenge, skepticism or contradiction.  So extreme has this behavior become that even Beltway TV personalities such as Chris Matthews are beginning to mock it.  This afternoon, Greg Sargent asked Editor-in-Chief John Harris to defend his magazine’s conduct, and Harris replied by claiming, in essence, that Cheney’s comments are “newsworthy” and that it’s Politico‘s job to “get newsworthy people to say interesting things.”

Harris’ reply is a complete non sequitur.  Nobody I’ve heard objects to Politico‘s act of telling its readers about the “interesting things” Cheney has to say.  The objection is that Politico mindlessly reprints any and all claims Cheney wants to make, no matter how factually dubious or even blatantly false, without question or challenge.  By definition, then, Politico serves Cheney as his official stenographer and spokesman (i.e., writing down and announcing what someone has said), rather than acting as journalists (i.e., stating what the facts are and how and why a politicians’ statements are untrue).  Harris doesn’t dispute this; he simply explains that — like most establishment journalists — Politico‘s role is not to document someone’s falsehoods, but only to repeat and amplify them.  We’re supposed to believe that what Judy Miller did was somehow anomalous and worthy of being disgraced, yet virtually every time “reporters” like Harris explain how they perceive their role, they describe exactly what Miller did:  we get important people to say interesting things and write it down, regardless of whether it’s true.

Thus, in their last Cheney “article,” Politico let Cheney attack Obama for giving “terrorists the rights of Americans, let[ting] them lawyer up and read[ing] them their Miranda rights” — without mentioning that the Bush administration did exactly that with Richard Reid, Zacharais Moussoui and several others (see this new Jake Tapper article detailing these contradictions for how an actual “journalist” reports on a political figure’s false accusations).  Politico also let Cheney accuse Obama of wanting to “release the hard-core Al Qaeda-trained terrorists” from Guantanamo — without noting that (a) many of the to-be-released detainees are ones even the Bush administration concluded did nothing wrong and are not a threat; (b) the vast majority of detainees held at Guantanamo were completely innocent; (c) it was Bush/Cheney who released many of the detainees who have since returned to the so-called “battlefield,” including one of the alleged leaders of Al Qaeda of the Arabian Peninsula; and (d) Obama is using the same tools used by Bush/Cheney — trials, military commissions and indefinite detention — to imprison all detainees deemed to be a “threat.”  Politico also let Cheney repeatedly claim that “that President Obama is trying to pretend we are not at war” — without noting that Obama twice escalated in Afghanistan, began bombing Yemen, and massively ratcheted up our drone attacks in Pakistan.

In other words, they dutifully wrote down a bunch of falsehoods and lies Cheney told, and passed those claim on to their readers without noting that they were false.   When confronted with their conduct, Politico‘s Editor-in-Chief blithely claims that this misleading, subservient behavior is his understanding of what “journalists” are supposed to.  And it undoubtedly is.  It’s true that, two days before printing its latest Cheney homage, Politico ran a good article by one of its few real reporters, Josh Gerstein, documenting that Bush waited longer to comment on Richard Reid than Obama waited to comment on the Northwest Airlines incident, but that’s only one of Cheney’s lies, and debunking it in an entirely separate article two days earlier doesn’t justify printing Cheney’s comments without challenge.

David Dayen at Firedoglake:

First off, I would say that Harris isn’t wrong on point #1. I basically said as much today, with Chris Matthews filling his show talking about Dick Cheney’s comments and then criticizing the outlet that initially ran them.

But Harris is being completely disingenuous about most of the rest. The complaint with Politico is that they are literally leasing space in their news section to Dick Cheney, without context or analysis of his frequent comments whatsoever, deliberately to generate news and links and “win the day.” One article by Josh Gerstein focusing on a small point of Cheney’s remarks over the course of a year doesn’t count, nor does some interview with Al Gore, when Politico has clearly become a house outlet for Cheney.

Oh, The Health Care Posts We’ve Had And Haven’t Had And Wish We Could Do

First, let’s talk reconciliation:

Ken Strickland at MSNBC:

What is reconciliation and why is it used?
As mentioned above, it takes 60 votes to pass anything controversial in the Senate, due to the threat of a filibuster. But in 1974, in an effort to cut the nation’s soaring deficits, Congress passed a law creating a procedure that could NOT be filibustered and would only need a simple majority of 51 votes to pass.

Without a filibuster-proof procedure, lawmakers reasoned, the Senate would face difficulty passing bills that would make cuts in Medicare and Medicaid — popular programs which take up a significant portion of government spending. In an “explanation” of why reconciliation is needed, the Senate Budget Committee wrote in 1998:

These changes are considered difficult because the very nature of the programs involved often necessitates changing tax rates or placing restrictions on very popular social programs in order to achieve budgetary savings.

In addition to needing only 51 votes to pass, floor debate is limited to only 20 hours. Adding amendments that are unrelated to the bill are also prohibited. These rules are intended to speed up the legislative process and prevent opponents from gumming it up with deliberate procedural dawdling.

Mark Schmitt at Tapped:

Strickland writes, “In 1974, in an effort to cut the nation’s soaring deficits, Congress passed a law creating a procedure that could NOT be filibustered and would only need a simple majority of 51 votes to pass. Without a filibuster-proof procedure, lawmakers reasoned, the Senate would face difficulty passing bills that would make cuts in Medicare and Medicaid.”

The thing is, deficits were not “soaring” in 1974. The federal budget deficit that year was $6 billion, or four-tenths of 1 percent of GDP. This year’s deficit will be about 13 percent of GDP. Reconciliation was not designed to force cuts in Medicare and Medicaid, which were not yet growing rapidly. When I was in the middle of the reconciliation process in 1993, trying to push a complex provision, I suddenly understood the process in a way I never had from the books: It was an effort to impose a modern, public-management type of budget process on top of the existing congressional process without disturbing the powers that be. It was a kludge. Before 1974, the president wrote a budget, but there was no overall congressional budget. The authorizing committees created programs, the appropriations committee funded some of them, others, like Social Security and Medicare, were funded automatically, based on the rules of the programs. There was no overall plan for spending or taxes. The Budget Committee (also created in 1974) was empowered to produce a plan, but in itself that plan would have no power.

[…]

The reason this history is important is because it is a reminder that reconciliation was not designed to create a “50-vote Senate.” It was really a limited scheme intended to connect the old spending process with the new.

In the lead-up to the Iraq War, there was a saying among neoconservatives: “Everyone wants to go to Baghdad. Real men want to go to Tehran.” Now, among progressives, one might say, “Everyone wants to do health reform. Real men want to use reconciliation” to cut out all Republicans and a few Democrats. But legislative strategy, like foreign policy, is not a test of manhood. It’s a very arcane and limited process that will leave many key provisions behind, and a weak and limited health plan.

One way or another, we’ll have to compromise. We’ll either compromise with the most conservative Democrats and one or two Republicans, or we’ll compromise with the limits of a process that was designed for a totally different purpose. The political question is simply going to be which compromise is worse.

Ezra Klein:

I’ll just add that the most committed skeptics of reconciliation that I run into come from some of the most liberal offices on the Hill. It has not, in my experience, been even mildly split along ideological lines. In part, this is a simple matter of staffing. These sources would prefer that power remained with Nancy Pelosi, Henry Waxman, Harry Reid and the White House. Reconciliation empowers the Senate parliamentarian and the chairmen of the budget committees. In the Senate, that’s Kent Conrad, who hasn’t distinguished himself as a particularly fire-breathing lefty.

Their other argument is that reconciliation, which is a surefire process for policies that directly change spending but a very uncertain process for everything else, seems better suited to things that centrists want than things that liberals want. Liberals are very worried about consumers, while conservatives are very worried, at least in theory, about spending. The reconciliation process favors spending concerns over consumer protection. Regulating insurers, for instance, is almost certainly ineligible. But taxing health benefits and tightening Medicare’s belt will sail right through.

My conclusion has been that a reconciliation bill should not look like the current health-care reform bill. It should be an expansion of public programs: Bring Medicaid up to 150 or 200 percent of the poverty line and allow people from 45 to 65 to buy into Medicare and give some of them tax credits to do so. I don’t know if there are votes for that strategy. But it wouldn’t run afoul of the Senate parliamentarian.

Moving  on, Ed Morrissey:

A month ago, as Congress prepared to return to Washington DC in total disarray on overhauling the American health-care system, the White House proclaimed that Barack Obama himself would draft a proposal to restart the process.  His joint speech in Congress mentioned no such plan, however, and the media quickly shifted its focus to the Senate Finance Committee, where moderates would have more influence than in Nancy Pelosi’s House.  Today, though, Roll Call reveals that the White House did craft its own plan — but wants to keep it under wraps now that Congress has returned to its own deliberations

[…]

This creates another problem for Democrats.  Both moderates and progressives in their caucus need traction over some contentious points of the plan, especially the public option.  With the White House super-secret plan known, members of both chambers may demand to see it to gauge where they stand with the administration.  Both groups would also be concerned, as Roll Call notes, that Obama was preparing to “sell them out.”

Mike Lillis at Washington Independent:

They might not need it. Despite sweeping Republican opposition to the Democrats’ plans, the Senate Finance Committee is carving through the hundreds of amendments to its proposal this month, with hopes that the bill will reach the Senate floor next week. With the arrival of Sen. Paul Kirk Jr. (D-Mass.), the Democrats now have a 60 members in the upper chamber. And without a public plan, the Finance proposal just might attract all of them.

Jennifer Rubin in Commentary:

So where does that put us now? It seems there are several possibilities. As occurred with social security and immigration reform under George W. Bush, the entire health-care reform effort may simply implode without resolution. Liberals insist on a public option while everyone else says no. Everyone goes away mad, vowing to blame the other guys. The public breathes a sigh of relief.

Alternatively, Nancy Pelosi and Harry Reid may realize they cannot become the death panel for the Obama administration. They assemble a package of discrete reforms that could have been enacted months ago. There are many pilot programs and study groups. Obama declares “victory,” liberals are furious that their moment of triumph has turned to mush, and the Obama agenda limps on.

And then there is the possibility that out of the morass of conflicting measures and without any assistance from the president (who plainly has no inner LBJ), some sort of comprehensive bill emerges. This alternative now seems the most difficult to imagine, which suggests how far we’ve come and how badly the president has fared. What would be in the bill? Could the Democrats use the reconciliation process to jam it through? We still have no answers to these basic questions. Why?

David Frum at New Majority:

Until now, the threat of a government-run healthcare plan has deterred Republicans from negotiations with the administration. They were (reasonably) afraid of being mousetrapped into a philosophically unacceptable deal. But if the single most threatening element of such a deal has been voted down by Democrats, the field looks different. Instead of worrying about worst-case scenarios, Republicans now can begin to think: are there things we want? Might we successfully wedge centrist Democrats away from the Chuck Schumers? Until now, Republicans have clung to the untenable healthcare status quo in great measure because they feared the likeliest alternative would be worse. But what if the alternative might be an improvement over the status quo? Suddenly the deal option begins to look a lot more interesting.