On New Year’s Eve, sometime after 11 p.m., several thousand red-winged blackbirds dropped lifelessly from the darkness onto suburban lawns, roofs, and roads in the small town of Beebe, Arkansas. “I thought the mayor was messing with me when he called me,” Milton McCullar, Beebe Street Dept. Supervisor, said to the local TV station the next day with a (nervous?) grin. “He got me up at four o’clock in the morning and told me we had birds falling out of the sky.” “When you first get the call, you think it’s a New Year’s joke,” said the mayor, Mike Robertson, himself. “But it wasn’t a joke.” News outlets quickly picked up the story, and today, it has twittered about. There are no conclusions yet as to why the birds perished—a hailstorm, perhaps, or even stress from nearby fireworks—and no one seems to have much to say about the incident, but for, look here, at this strange, ominous (and yes, Hitchcockian) thing.
The blackbirds aren’t the only mystery animals in Arkansas. 100,000 fish have died in a river 125 miles from Beebe. It’s not clear what killed them but disease may be to blame. There’s nothing to suggest the two events are linked.
When thousands of red-winged blackbirds fell from the sky on New Year’s Eve in Beebe, Arkansas, it seemed like God was angry at the Natural State, especially considering the additional 100,000 dead fish in a nearby river. “I’m not drunk and I’m not on drugs,” said one local when he called the police department. “She said, ‘Oh, you’re calling about the birds.'” A handful of the fallen creatures were taken in for testing, but officials are now saying that loud noises, probably from fireworks, scared the birds, causing them to slam into trees or houses and that the weather had nothing to do with it. Extraterrestrials are still suspected.Via the Wall Street Journal:
A witness reported that the birds, which roost in the area in large numbers and don’t see well at night, were scared by the noise and slammed into houses and trees, said Arkansas State Veterinarian George Badley. A study of several carcasses showed the birds died of internal bleeding.”We’re still checking for germs and poisons, but we believe it was just trauma,” said Dr. Badley.
The total dead is somewhere between 1,000 and 5,000, but that’s not counting the 500 red-winged blackbirds found in Louisiana, in what CNN calls a “seemingly separate incident.”
Later yesterday, other sources were reporting that loud noise could have been behind the Arkansas incident. Necropsies performed yesterday showed the Arkansas birds suffered internal injuries that formed blood clots that went to their brains. It’s conceivable that loud noise (NYE fireworks?) could have startled a flock, causing them to rapidly change course and plunge headlong into buildings or tall trees, sustaining blunt traumas that led to their collective death.
Of course, none of this accounts for the 500 freshly dead birds in Louisiana. Those, of course, could be completely unrelated to the Arkansas birds (don’t be fooled by randomness, people). But we like a good conspiracy theory better. Besides, what about all those dead drum? Something smells fishy indeed, but who could possibly benefit from knocking off a bunch of birds in the American south? NASA? BP? Aliens? Our money is on Captain Chesley “Sully” Sullenberger, who was never really afforded an opportunity to even the score with his avian nemeses.
Many people are looking to the bible for verses conveying the warnings of the apocalypse with dead birds, but according to the website God Discussion, this does not seem to be mentioned. There are bible writings that are close, but not that convey the end of the world or harm coming to mankind affliated with dead birds.
2012 Prophecies have some people concerned after the dead birds fell from the sky, according to one commentator on Fox News live. According to the God Discussion website, the first searches for this story consisted mainly of the search words “dead birds.” Later, as the day went on, the search words turned to “dead birds” and “bible.” These dead birds have many people wondering today – what is the spiritual meaning in masses of dead birds falling from he sky?
One Connecticut housewife L. Kelly, admitted she did the same Internet search that many others did today, “dead birds” and “bible.” “It is just an eerie thing to happen, not something you ever hear about Kelly said.” She too fell on many confusing claims, but nothing that states the bible has a quote about dead birds and the end of the world is coming.
Point of truth: Here at Movieline HQ, we’re busy stocking up on batteries and canned goods in the wake of the mass bird and fish deaths that happened in Arkansas over the weekend. (Not to mention the flooding in Australia.) That said, not everyone has worked themselves up into a full blown lather of panic. Just ask born-again Christian Kirk Cameron: “I think it’s really kind of silly to kind of equate birds falling out of the sky with some kind of an end-times theory.” Wait, even Cameron is making sense? Maybe this really is the end of times.
But take heart: Though this story seems strange and even apocalyptic, it’s not necessarily so. The Baton Rouge paper cites an official from the U.S. Geological Survey as saying that a thousand or more blackbirds have turned up dead some 16 times in the past 30 years.
Longtime U.S. diplomat Richard C. Holbrooke, whose relentless prodding and deft maneuvering yielded the 1995 Dayton peace accords that ended the war in Bosnia – a success he hoped to repeat as President Obama’s chief envoy to Afghanistan and Pakistan – died Monday in Washington of complications from surgery to repair a torn aorta. He was 69.
A foreign policy adviser to four Democratic presidents, Mr. Holbrooke was a towering, one-of-a-kind presence who helped define American national security strategy over 40 years and three wars by connecting Washington politicians with New York elites and influential figures in capitals worldwide. He seemed to live on airplanes and move with equal confidence through Upper East Side cocktail parties, the halls of the White House and the slums of Pakistan.
Obama praised him as “a true giant of American foreign policy who has made America stronger, safer, and more respected. He was a truly unique figure who will be remembered for his tireless diplomacy, love of country, and pursuit of peace.”
Secretary of State Hillary Rodham Clinton said in a statement that the United States “has lost one of its fiercest champions and most dedicated public servants.”
Holbrooke’s untimely death comes as a particular shock to those of us at FP, who saw him only two weeks ago when he was honored at our Global Thinkers Gala and was at his pugnacious best. (Here’s a video of his speech at the event, in which he called his years at FP “among the most important in my life and my career.”
Holbrooke was a giant of American policy over the last half century, trouble-shooting in conflicts from Vietnam, to the Balkans, (about which he wrote his classic first-person account, To End a War) to Afghanistan. (He’s probably one of the few State Department figures to play a starring role in both the Pentagon Papers and the WikiLeaks documents.)
But while often seen as the consummate Foggy Bottom insider, Holbrooke was never sentimental about the business of American foreign policy. His first piece from the very first issue of Foreign Policy in 1970 takes on the bloated U.S. foreign-policy bureaucracy, or has he called it, “the machine that fails.” In Holbrooke’s view, the proliferation of massively-staffed agencies accountable for different aspects of U.S. foreign policy had made the entirely apparatus dangerously unwieldy.
Diplomacy is a paradoxically insular world. And most of the nation’s foreign affairs get little treatment in the headlines. So I imagine that more than a few readers are wondering why we’re giving such major treatment to the death of Obama administration who many of you probably have never heard of or perhaps only in passing.
As the obituaries note, Holbrooke was key figure in US diplomacy for almost half a century. One fun fact: he authored a substantial portion of the Pentagon Papers. What may or may not come through as clearly was the size of the personality and the doggedness — a fact that likely kept him from the top job of Secretary of State in this and last Democratic administration.
Vice President Biden’s statement contains these two sentence: “Richard Holbrooke was a larger than life figure, who through his brilliance, determination and sheer force of will helped bend the curve of history in the direction of progress … He was a tireless negotiator, a relentless advocate for American interests, and the most talented diplomat we’ve had in a generation.”
His reputation rests on his role in ending the war in Yugoslavia, where he demonstrated a cold-eyed, unabashedly pragmatic mix of cajoling, bullying, threatening and negotiating mixed with bombing to achieve an eminently just and moral end, which makes him on several levels a hero to many of us.
Out for a long-overdue drinks and dinner with foreign-policy-oriented friends tonight, all of a sudden our phones buzz. Richard Holbrooke, the most distinguished diplomat of his generation, has died. None of us know quite what to say. Our respect for Holbrooke has long been tempered with a certain exasperation with how his personality has overshadowed his talents and gotten in the way of his ambition.
And all of a sudden it dawned on me how trivial and thin that critique is. What other American diplomat can credibly say s/he ended a savage war? I read To End A War the year I came to Washington and decided I wanted to cover foreign policy — immediately, if I recall correctly, after I finished A Problem From Hell, partly because I didn’t want to stop exploring what that book mined — and still remember how superhuman a task Dayton seemed, even after factoring out Holbrooke’s interest in making it seem so arduous.
For 40 years, no other diplomat has played as impactful a role in as many of the nation’s crucibles. It’s him and Kissinger (and Kissinger’s been out of the arena for a long time). And whatever Holbrooke’s flaws were, his influence during these tests was ultimately wise and beneficial, quite unlike Kissinger’s. Think for a moment about how thin the line is in foreign affairs between principle and hubris; between the lessons of experience and the blinders they impose; between subtlety and miscalculation. Someone who manages to manage, as Holbrooke always did, is a precious resource.
We read our messages, and clinked our glasses in honor of a great man, thought briefly of his family, and drank. RIP.
Richard Holbrooke is gone. This is not the time for cliches.
But I can’t imagine results-achieving American diplomacy without him. I will personally miss him so much — and am deeply saddened by his passing.
Condolences to Kati Marton, his amazing wife; and to all of his current team — and his many former staff who will carry on his ideas and work for years.
It was not easy to construct a quiet hour or two with Richard Holbrooke. I saw him regularly, as did other journalists and researchers who worked on Afghanistan and Pakistan, but a long sit-down took some effort. Holbrooke was an accessible, open, and attentive person, but he was also in perpetual motion. He moved from meeting to meeting, conversation to conversation, and if you managed to sequester him somewhere for fifteen minutes or more, his cell phone was sure to ring—Islamabad, Kabul, the Secretary of State, somebody.
Earlier this year, however, we managed to arrange a private lunch in Washington on a Saturday. He invited me to meet him at the Four Seasons Hotel, near his home in Georgetown. The dining room at the hotel is not quite the watering hole for the wealthy and famous that it is in Manhattan, but it is a Washington-limited facsimile. When the Ambassador arrived the maître d’ attended him lavishly, scolding the waiter who had initially greeted him for failing to assign him an appropriately expansive and exclusive table.
He was carrying that morning’s Financial Times. He marvelled over an article he was reading about I. M. Pei and he wanted to talk about architecture for a while. As I had gotten to know him a little, I had discovered that he would speak about subjects such as acting or trends in academic history with genuine passion. He sometimes preferred those topics to the repetitive nuances of South Asia’s dysfunctional politics. He had a reputation for creating drama around himself; he was genuinely a theatrical man, in the sense of being physical and full of emotion and gesture. I came to think that he lived the way he did in part to avoid boredom.
While we ate lunch, Jerry Seinfeld and some of his entourage entered the dining room; Seinfeld was a guest at the hotel. “Jerry!” Holbrooke shouted, warmly. They were neighbors, it turned out, in New York and Telluride. We stood for introductions and chit-chat. Holbrooke asked what Seinfeld was working on and the comedian talked about his new reality-television show. In mid-explanation, however, Holbrooke’s cell phone rang. It was Robert Mueller, the director of the Federal Bureau of Investigation, and so the Ambassador had to interrupt Seinfeld to take the call. Eventually we returned to our table and resumed our discussion about the Waziristans and the rest.
I’m finding it mind-boggling (as is Jim Fallows) that Richard Holbrooke has died, because he was not the sort of person who dies, or at least dies before he’s finished with what he needed to finish. There was too much will inside him to achieve, and he had not yet achieved what he needed to achieve. The last time I spoke to him, a couple of months ago, I asked him if he would replace George Mitchell as the Middle East envoy when Mitchell inevitably stepped down. It always struck me that Holbrooke, with his titanic ego, his magnetism and his brute intelligence — and also his conniving, man-of-the-bazaar qualities so unusual in an American — would be the only American who could birth a Palestinian state and bring peace to the Middle East (Could you just imagine Bill Clinton as good cop and Holbrooke as bad? I could). Holbrooke laughed off the question, but not really. There were challenges he needed to master before he mastered that one. He was not having great luck in Afghanistan, and he might very well have ultimately failed, but you have to ask yourself — who else? Who else could do what he did? Who else is there? Richard Holbrooke will be missed, even — especially — by the people he drove mad.
I am thinking of a dozen stories now, starting in the early 1970s when he was editor of Foreign Policy magazine and I was a fledgling freelance writer for him. (Or when, a few years later, I had the odd experience of welcoming him to Plains, Georgia as part of the Carter campaign team.) I will store them up for another time. He was a tremendous force, overall for the betterment of American interests and the world’s. My sympathies to his wife Kati and the rest of his family. It’s routine to say this, but in this case it’s really so: his absence will be felt.
Gov. Chris Christie fired state education commissioner Bret Schundler this morning after Schundler refused to resign in the wake of the controversy over the state’s loss of up to $400 million in federal school funding.
“I was extremely disappointed to learn that the videotape of the Race to the Top presentation was not consistent with the information provided to me,” Christie said in a press release. “As a result, I ordered an end to Bret Schundler’s service as New Jersey’s Education Commissioner and as a member of my administration.”
A deputy commissioner will be named acting commissioner while the governor searches for the next person to fill the $141,000-a-year position, two officials briefed on the situation said.
Rich Bagger, Christie’s chief of staff, asked Schundler to resign on Thursday evening because he “misled” the governor and senior staff about what happened during a presentation in Washington, D.C., the officials said.
On Wednesday, Christie publicly said Schundler had tried to give the correct information to a bungled question during the presentation, but video from the U.S. Department of Education released Thursday proved that did not happen.
Upon posting the YouTube clip yesterday of a Chris Christie press conference, I remarked how Christie had impressively turned the tables on an issue that could have embarrassed him. A clerical error by his education department–failing to list 2008-2009 funding levels–resulted in the loss of $400 million in federal education funding. Why, Christie asked, didn’t an Obama administration bureaucrat just pick up the phone and ask New Jersey’s education department for the right number?
Well, NJ.com reports, it turns out the feds asked Christie’s education director for the number in person, and he failed to correct the application
Christie had relied on Schundler’s insistence that his team had provided the data to the Obama administration to blast the White House for being too rigid about paperwork rather than relying on the data. The Department of Education responded by publishing the review video, putting Christie in a tough spot. He had little choice but to give a strong reaction to the revelation.
Not that Schundler didn’t deserve it, if the evidence is complete. Not only did his team botch the presentation, he apparently deceived his boss about the situation rather than just admit to the error. Executives can deal with failure, but deception is another thing entirely. If an executive can’t trust his staff, then he or she has to find replacements more worthy of trust. That’s probably more true in politics than in the private sector, but it’s true enough in all arenas to know that Schundler couldn’t expect to keep his job after this.
By taking action, Christie can minimize the embarrassment, but it’s not going to be an overall plus for him; it will just limit the damage and bring the incident to a swift conclusion.
Ousted state Education Commissioner Bret Schundler today said he asked Gov. Chris Christie to be fired from the work he considered his “life’s dream,” rather than resign, so he could receive unemployment benefits to pay his bills.
Apparently Schundler, “once hailed as a rising star in conservative circles,” has gained a new appreciation for taking advantage of federal assistance.
Back in the day Brett Schundler was the rising star of the NJ GOP, making his mark as the uber-conservative Mayor heavily Democratic Jersey City. He made his name in the ‘cut every benefit cut every everything’ wing of the party.
But today when Gov. Christie (R) asked him for his resignation as state Ed Commissioner result of errors and misrepresentations from Schundler in a matter costing the state $400 million in federal “Race to the Top” money he asked if he could be fired instead so he could collect unemployment benefits.
Schundler is the former mayor of Jersey City (a Democratic city) and a candidate for Governor in 2001.
Christie does hold Schundler accountable for what he calls “lying to me,” but hasn’t held himself accountable for publicly siding with Schundler before getting independent verification of the facts. As the Star-Ledger editorial board says, “Schundler may not be at fault in this latest episode. The governor is the one who made the false claim.”
But accountability doesn’t reach to the top, at least not in New Jersey.
I appeared on The Rachel Maddow Show last night to articulate the case against Elena Kagan, and was then followed by Kagan friend and defender Larry Lessig of Harvard Law School, who spent five minutes (in my absence) trying to discredit me and what I said (video of the two segments is below). Although I would have preferred an opportunity to address the accusations Lessig was making about me through an interactive exchange, I was glad Rachel presented both sides of the debate. But there is one serious accusation that Lessig spouted that is so blatantly and inexcusably false that I feel compelled to highlight it, particularly since I was unable to respond last night. This is what Lessig said when referencing “this work [Kagan] had written when she wrote this piece for the Harvard Law Review” in 2001:
This is another area where Glenn has just flatly misstated the case. In his piece on Democracy Now [sic] on April 13, he said that in that article, she talked about the power of the President to indefinitely detain anyone around the world.
Now, that article was written before George Bush, before 9/11, and before George Bush articulated anything about this power. It has nothing to do with the power of the President to detain anybody. The power of the unitary executive that George Bush articulated — this kind of uber power of unitary executive — was nowhere even hinted at in Elena’s article. Yet Glenn has repeatedly asserted that she is George Bush, and that is just flatly wrong.
If I were listening to that and had no familiarity with what I had written, I’d have thought: Wow, that Glenn Greenwald is either completely dishonest or a total idiot; how can he go around claiming that Kagan’s 2001 law review article defended Bush detention policies when it was written before those policies were even implemented and had nothing to do with those policies? People questioning the Kagan pick obviously have no credibility. And that, of course, is exactly the impression Lessig’s accusation was intended to create.
Except it’s totally false. I’ve never said, believed or even hinted at any such thing — let alone “repeatedly asserted” it. Lessig just made that up out of thin air and, knowing nobody was there to dispute it, unleashed it on national television. Kagan’s comments embracing indefinite detention powers came in her 2008 Solicitor General confirmation hearing when answering Lindsey Graham: please see Law Professor Jonathan Turley’s superb analysis on that exchange. Her position on detention was expressed there, not in her 2001 Law Review article, and — contrary to Lessig’ inexcusably false accusations — I never, ever claimed otherwise.
So I called Greenwald on that on Rachel Maddow’s show last night. I said I had enormous respect for Greenwald’s work. But that his hyperbole needed to be “checked.” And much of my ten minutes or so was devoted to pointing out the incompleteness in Glenn’s raging campaign to discredit the president’s nominee to the Supreme Court.
This morning Glenn responded to my challenging his hyperbole by calling me a liar. I had “spew[ed] total falsehoods on TV,” he claimed. And with indignation, he denied that he had asserted the things that I had charged him with saying.
My claim against Glenn is that he is fudging a critical distinction to the end of painting Kagan as some kind of Bush-Cheney monster. The distinction is between lawyers like Kagan who believe the president has broad power to control the executive branch because Congress (directly or indirectly) gave him that power, and others like Cheney who believe the president has broad power to control the executive branch because the Constitution (directly or indirectly) gave him that power. The critical word here is “broad”: Everyone agrees that there is a core of executive authority that the constitution has vested in the president exclusively. The debate is how broadly that core extends.
The difference between these two positions is critical. If you believe the Constitution gives the president absolute control over the administration, then there’s nothing that Congress can do about it. But if you believe that it is Congress who has given the president this power, then Congress can take away what it has given.
There is no ambiguity about what Kagan believes in this respect. As she wrote in her important 2001 piece, “Congress may limit the President’s capacity to direct administrative officials… If Congress … has stated its intent with respect to Presidential involvement, then that is the end of the matter.”
Glenn has referred repeatedly to this article in his criticisms of Kagan. Sometimes he is careful to make clear that it expresses a theory of executive power that is radically different from the theories of Bush-Cheney. In his original “Case Against Kagan,” he admitted that Kagan’s theory is “many universes away from what Bush/Cheney ended up doing.” I’d quibble with the characterization. It isn’t “many universes away.” It is the same universe, just the opposite view. Bush/Cheney-ites believe Congress is irrelevant. Kagan believes Congress ultimately controls.
But more recently, Glenn has been less careful in the distinction. Just yesterday, on DemocracyNow, he stated this:
But, actually, she did write a 2001 law review article on executive power that took an extremely expansive view of executive power that she herself acknowledged was first formulated by the Reagan administration to allow presidents to control administrative agencies instead of letting Congress do so.This is of course flatly wrong. Kagan’s position does not “allow presidents to control administrative agencies instead of letting Congress do so.” As I quoted above, under her position, Congress ultimately controls “instead of” the president.
The same sloppiness seeped into another appearance Glenn made on DemocracyNow about a month ago. As he said on April 13:
And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war.
Notice now the “law review article she wrote in 2001” is being used in the context of supporting “robust defenses of executive power, including the power to indefinitely detain.” It was this language that I called Glenn out on last night explicitly, asserting that the 2001 article did not even remotely support a president’s constitutional claim to detain, Congress’s contrary view notwithstanding.
Before I had seen Glenn’s response this morning, we had emailed about this point. He had acknowledged that the “grammar is a bit vague” but that he “never thought, implied or claimed that that article had anything to do with detention.”
But the question isn’t detention. The question of “executive power” (as opposed to government power generally) is whether the president has a constitutional authority to decide what to do independent of Congress. That was the constitutional challenge raised by Bush-Cheney. No one thinks that there’s a serious constitutional question (beyond due process rights) in this Court if Congress expressly gives the president the power to detain. The whole constitutional fight is about whether that policy judgment is one that Congress gets to participate in, or whether it is the president’s to make alone. And what Glenn was saying is that Kagan’s 2001 article is consistent with the “robust views” of executive power that Bush/Cheney advanced.
And so as I said last night on the Maddow show:
Now, that article was written before George Bush, before 9/11, and before George Bush articulated anything about this power. It has nothing to do with the power of the president to detain anybody. The power of the unitary executive that George Bush articulated — this kind of über-power of unitary executive — was nowhere even hinted at in Elena’s article. Yet Glenn has repeatedly asserted that she is George Bush, and that is just flatly wrong.This is my “falsehood” “spewed on TV.” Except that whether it was “spewed” or not, it isn’t false. Glenn has repeatedly suggested that Kagan’s 2001 article shows that she believes the president has the power “instead of” Congress. That characterization of Kagan’s view is flatly wrong. It was wrong to suggest she had said that about the ordinary work of administrative agencies. It was super-wrong to suggest she had said that about anything to do with the president’s power to wage war. To link the two together in a single sentence would confuse — even if the grammar were clear. And to hear people echo the words of Glenn, it is clear his confusion has spread.
Chill, Glenn. Dial down the outrage. Dial back the hyperbole. And stop calling those who applaud you liars. No doubt there are other progressives the president could have nominated with a clearer public record. I can well understand the frustration of some that the president didn’t pick one of these others, even if I don’t share it.
This morning, Greenwald took to the Salons with a post that’s, you know, tough — both on Lessig and in its detailedness. The talking point’s all in the headline: “How people spew total falsehoods on TV.” For the rest, there’s the text. And thetwitters.
Despite Lessig’s assertion that there is “no ambiguity about what Kagan believes in this respect,” there’s certainly room to question that based on the relatively scarce record of writing from Kagan on these issues. Greenwald isn’t the only constitutional lawyer to raise them; he’s joined by Jonathon Turley. And Lessig isn’t the only attorney to dispute Greenwald’s and Turley’s interpretations of those of Kagan’s writings that are available.
This is a healthy and a critical debate. It’s one that should inform the Senators who are charged with examining Kagan for what will be a lifetime appointment to the nation’s highest court. It’s the duty of the Senators on the Judiciary Committee to question her beliefs on executive power, on the various roles of the executive versus the legislative branches and to conduct an exhaustive examination of what is going to remain a core issue for the Court in the post-Bush years. It’d be a shame to have this discussion limited to the blogosphere and the cable networks when it is so critical to the nation.
Alabama Attorney General Troy King said tonight that he has told representatives of BP Plc. that they should stop circulating settlement agreements among coastal Alabamians.
The agreements, King said, essentially require that people give up the right to sue in exchange for payment of up to $5,000.
King said BP’s efforts were particularly strong in Bayou La Batre.
The attorney general said he is prohibited from giving legal advice to private citizens, but added that “people need to proceed with caution and understand the ramifications before signing something like that.
“They should seek appropriate counsel to make sure their rights are protected,” King said.
By the end of Sunday, BP aimed to sign up 500 fishing boats in Alabama, Mississippi and Florida to deploy boom.
BP had distributed a contract to fishermen it was hiring that waived their right to sue BP and required confidentiality and other items, sparking protests in Louisiana and elsewhere.
Darren Beaudo, a spokesman for BP, said the waiver requirement had been stripped out, and that ones already signed would not be enforced.
“BP will not enforce any waivers that have been signed in connection with this activity,” he wrote in an e-mail.
Big oil is really, really big here. Tonight at 9 PM, we’ll have a special show live from Venice, Louisiana, all about the Deepwater Horizon disaster.
BP, which leased the Deepwater Horizon oil rig from Transocean, has been trying to contain the legal disaster as well as the natural one.
Today, U.S. District Judge Ginger Berrigan struck down part of a charter contract between Louisiana fisherman and BP. The oil company was asking local fisherman, who’ve been put out of work by the oil disaster, to sign off an agreement saying they wouldn’t talk about what they saw without approval from BP, among other provisions.
The Obama administration is pressing oil giant BP to clarify how the company will cover costs relating to the Gulf oil spill, even as BP indicated it would pay “legitimate and objectively verifiable” claims.
Homeland Security Secretary Janet Napolitano says reimbursement for individuals and state and federal government will be on the agenda when she and Interior Secretary Ken Salazar meet with BP’s top executives in Washington later Monday.
She told ABC’s “Good Morning America” that the Obama administration wants to make sure there is a clear claims process set up for proper reimbursement. She also wants BP to stop requiring those volunteering with the cleanup to sign waivers limiting the company’s liability.
Meanwhile, in a fact sheet posted to the company’s website on Monday, BP said it took responsibility for the response to the Deepwater Horizon oil spill and said “we will clean it up.”
The document says “BP will pay all necessary and appropriate clean-up costs” as well as “legitimate and objectively verifiable” claims for property damage, personal injury, and commercial losses. It pledged that claims will be “promptly investigated” and that resolved claims would be paid promptly.
Sid Jackson, a Mobile-based lawyer representing a shrimper who last week filed suit against BP, claiming that the spill had already taken a financial toll on his business, told TPMmuckraker that he believed BP would be wise to back down. “I think they kind of drop-kicked that [waiver] clause into the fine print,” Jackson said. But, “I think it would backfire” if BP tried to enforce it.
“This is the same company that told the coast guard there was no leak,” Jackson added.
BP has been hiring local fishermen to help with the effort to mitigate the impact of the spill — and has included what seems to have been a similar clause in the contracts it asked them to sign.
Spokespeople for BP and for King’s office did not immediately respond to TPMmuckraker’s requests for comment.
If BP really wanted to manage their expenses at this time, maybe they could reduce the millions in lobbying costs that, strangely, did not succeed in capping the wellhead or stopping the advance of black murk. It did manage to intellectually capture Rep. Gene Taylor, however, so I guess that was money well spent.
In the end, I’m banking on at least some taxpayer money funding the aftermath of this catastrophe, or a lot of uncompensated people with their lives in tatters.
CNN continued what has become a precipitous decline in ratings for its prime-time programs in the first quarter of 2010, with its main hosts losing almost half their viewers in a year.
The trend in news ratings for the first three months of this year is all up for one network, the Fox News Channel, which enjoyed its best quarter ever in ratings, and down for both MSNBC and CNN.
CNN had a slightly worse quarter in the fourth quarter of 2009, but the last three months have included compelling news events, like the earthquake in Haiti and the battle over health care, and CNN, which emphasizes its hard news coverage, was apparently unable to benefit.
The losses at CNN continued a pattern in place for much of the last year, as the network trailed its competitors in every prime-time hour. (CNN still easily beats MSNBC in the daytime hours, but those are less lucrative in advertising money, and both networks are far behind Fox News at all hours.)
About the only break from the bad news for CNN was that March was not as bad as February, when the network had its worst single month in its recent history, finishing behind not only Fox News and MSNBC, but also its sister network HLN — and even CNBC, which had Olympics programming that month.
We’re now one month away from Fox News becoming the #1 cable news channel for the 100th consecutive month based on total viewers, and this quarter FNC expanded its reach into the cable market as a whole – finishing 2nd in prime time on all of cable, behind just USA Network. It also had the top 13 programs on cable news in both total viewers and the demo.
As for the programs, their two main news shows saw their best quarters ever. Special Report with Bret Baier and FOX Report with Shepard Smith at 6 and 7pmET respectively. Of course, the entire line-up was up – in demo, Glenn Beck was up the most (50%).
While CNN continues to decline in prime time (as detailed today in theNew York Times) and MSNBC’s signature programs fall off as well (post coming), Fox News remains unaffected. In fact, with health care passing, there’s no reason to doubt the second quarter of 2010 will be any different. With midterm elections just around the corner, Fox News could conceivably be headed for another year of stronger ratings than the one before.
Whether you’re a fan of the ‘fair and balanced’ or not, it’s an amazing feat.
CNN executives have long talked about the network’s prime time strategy of going against the grain of increased partisan commentary in the evenings, instead offering up hosts down the political center.
For major news events this year, such as the earthquakes in Haiti or Chile, CNN has excelled in pulling its vast international resources to cover the story from a variety of angles. Both Fox and MSNBC, by comparison, have focused more on hot-button political issues and debates, a strategy that seems to be working better in pulling prime time viewers.
Let’s look at the competitors throwing around Larry King—who is apparently valued by CNN enough that they provide him access to their private jet: Rachel Maddow. OK, forgivable. Larry King is of an earlier time. (Somewhere between late Victorian and Prohibition, according to our calculations.) Rachel Maddow is fresh and new, and lesbian. No way can Bones McGee hope to compete with Maddow when he is so out of it, demographically speaking. (Although he has gamely adapted to Twitter, and is attempting to disguise how old he is by tweeting pictures of himself with Snoop Dogg. Sorry, Larry, maybe in 1998. Try interviewing random people on Chatroulette or something)
But Hannity? This show’s trademark segment—”The Great American Panel”—seems to only feature NASCAR drivers and fishing guides talking about American foreign policy. The set looks like a chain family restaurant about three notches below TGI-Fridays, and Hannity himself has all the incisiveness of a piece of shale someone wrapped a suit around and somehow passed off to Fox Execs as a television news personality. And the fact that Joy Behar “threatens” this old man is very sad indeed—almost to the point where we feel bad commenting on it. Like, don’t kick the guy when he’s already being punched in the balls by Joy Behar, right? Let’s just say we are confident that if someone gave us a Flip camera, $100 an episode, and an old panel van to tool around in, we could beat Joy Behar in the 10pm slot.
This would be different if Larry King was in some way redeemable. He is not. He functions basically as a human wall onto which disgraced politicians and worthless celebrities can fling their shit and smear it around while dozing seniors try to remember what they’re watching long enough to realize they hate it. Larry King’s contract runs out June 2011. Bye Larry King! And if there’s anything to speculation that Anderson Cooper might move onto King’s turf: Yes, please. But only if he does the entire show while swimming with sharks.
They can certainly keep telling themselves that their hosts don’t align with a “partisan point of view,” but the viewers obviously think otherwise. Anderson Cooper helped popularize the “teabagger” slur used against Tea Party activists, which certainly would have alienated that demographic. Larry King isn’t exactly known for his welcoming attitude towards conservatives, and neither for that matter is Campbell Brown or Rick Sanchez. When conservative points of view are expressed by guests, the CNN hosts display a lot more skepticism for them than with the expressions of liberal points of view. (Full disclosure: I’ve been on with both Campbell and Rick and they’ve treated me fairly.) It’s not hostility, like one sees on MS-NBC, but if CNN thinks that equates to not having a partisan point of view, then small wonder they haven’t been able to stanch the bleeding.
That’s not to say that CNN is the worst in class, either. CNN picked up Erick Erickson of Red State as an analyst, and they do better at balancing points of view in prime time than MS-NBC, which has become a lunatic asylum after about 11 am ET. But Fox has done a better job over a longer, consistent period of incorporating serious left-of-center analysts like Juan Williams, Mara Liasson, Kirsten Powers, and more in both its talking-heads shows and its news analysis than any of the other cablers. Being better than MS-NBC is, in any case, damning with extremely faint praise.
What can CNN do to right the ship? They need to take a much more clear-eyed view of the way they come across to their viewers. CNN has more assets in the field for news gathering than its competition, but loses credibility when it mixes editorializing with reporting. With MS-NBC so far on the Left that it can barely be seen and Fox News Channel leaning right, they might do better by actually playing it down the middle and sticking to nonpartisan analysis. They’ll need to shake up their lineup to do that, and maybe get away from the talking-head concept altogether and instead break the prime-time lineup into focus areas such as foreign affairs, politics, domestic policy, and so on. They need to make themselves useful and unique — at which they have only succeeded with their headline news.
To reconcile or not to reconcile — when it comes to a health overhaul bill, that seems to be the biggest argument of the moment.
At issue is a process called budget reconciliation. By writing Obama’s health care plan as a budget bill, Democrats can prevent a Republican filibuster in the Senate and advance the bill with a simple majority instead of the 60-vote supermajority they no longer have.
Not surprisingly, that has Republicans crying foul. Budget reconciliation, Sen. John Kyl (R-AZ) told reporters Tuesday, “was never designed for a large, comprehensive piece of legislation such as health care, as you all know. It’s a budget exercise, and that’s why some refer to it as the ‘nuclear option.'”
“The use of expedited reconciliation process to push through more dramatic changes to a health care bill of such size, scope and magnitude is unprecedented,” Sen. Orrin Hatch (R-UT) wrote in a letter to President Obama on Monday, urging him to renounce the possibility of trying to pass a bill using the procedure.
But health care and reconciliation actually have a lengthy history. “In fact, the way in which virtually all of health reform, with very, very limited exceptions, has happened over the past 30 years has been the reconciliation process,” says Sara Rosenbaum, who chairs the Department of Health Policy at George Washington University.
For example, the law that lets people keep their employers’ health insurance after they leave their jobs is called COBRA, not because it has anything to do with snakes, but because it was included as one fairly minor provision in a huge reconciliation bill, she says.
“The correct name is continuation benefits. And the only reason it’s called COBRA is because it was contained in the Consolidated Omnibus Budget Reconciliation Act of 1985; and that is how we came up with the name COBRA,” she says.
COBRA, which confusingly did not become law until 1986, was actually a much larger bill, including many nonhealth provisions and many other important health provisions as well (see chart). Among them was the so-called Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals that accept Medicare or Medicaid payments to at least screen patients who arrive for emergency treatment, regardless of their ability to pay.
“Youknow, we’ve witnessed the Cornhusker Kickback, the Louisiana Purchase, the Gatorade, the special deal for Florida,” Senate Minority Leader Mitch McConnell said Feb. 22 on Fox News.* “Now they are suggesting they might use a device which has never been used for this kind of major systemic reform.” Sen. Orrin Hatch, R.-Utah, wrote Feb. 23 on USA Today’s Web site that the Obama White House is engaged in “an all-out push for the highly partisan ‘nuclear option’ of reconciliation, special rules to circumvent bipartisan Senate opposition, to jam this bill through Congress. To be clear, this procedure was never contemplated for legislation of this magnitude.” Sen. Chuck Grassley, R.-Iowa, said Aug. 23 on CBS News’ Face the Nation, “If you have reconciliation, it’s a partisan approach.” Sen. Olympia Snowe, R.-Me., said much the same in April. “If they exercise that tool,” she told the Washington Post, “it’s going to be infinitely more difficult to bridge the partisan divide.”
But look at the Senate roll call on the conference report for the 1996 welfare reform bill, the most momentous piece of social legislation to become law in the last 20 years. The bill’s formal name was the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (italics mine). It was called that because it passed the Senate through budget reconciliation, even though the bill’s purpose (“ending welfare as we know it”) was only peripherally about trimming the federal budget. Yet McConnell voted for the bill. So did Hatch, Grassley, Snowe, and every other Republican in the Senate. So, for that matter, did most Democrats.
Why did the Republican-controlled Senate use reconciliation to pass welfare reform? Interestingly, when I posed that question to several welfare-reform experts—including one person (Ron Haskins, senior fellow at the Brookings Institution) who’s published a narrative history of it—none could immediately remember why. Why couldn’t they remember? Because the decision to use reconciliation was one of the least remarkable things about the bill.
Elsewhere, political scientist Joshua Tucker found a Congressional Research Service report (pdf) listing every time reconciliation was used between 1981 and 2005, and he built a rough model testing which party used the process more frequently. During that period, there were 19 reconciliation bills, 11 of which were signed by Republican presidents, five of which were signed by Democratic presidents, three of which were vetoed by Democratic presidents, and none of which were vetoed by Republican presidents. “By my admittedly simple classification scheme,” Tucker concludes, “this would suggest that 14 of the 19 times reconciliation was used between FY1981 – FY2005, it was used to advance Republican interests.”
The real story lurking in these arguments is that reconciliation has become the normal process for many of the most important bills in recent years. The Bush tax cuts went through reconciliation. Welfare reform went through reconciliation. The Balanced Budget Act of 1997 went through reconciliation. We’ve never really discussed the fact that we have a majority-rules process tucked inside the supermajority Senate (in part because the realization that we have a supermajority Senate is relatively recent), but it’s been key to getting anything done for at least 20 years now, and it will be an even more constant presence in the next 20 years.
Reconciliation bills have a privileged status on the Senate floor. There is no debate on whether to begin consideration of a reconciliation bill. Proposed amendments must be germane to the bill. Debate on the bill and any amendments to it is limited to 20 hours. If you’ve ever heard the phrase “vote-a-rama,” this is where it comes from: when the time limit for debate on a reconciliation bill has been reached, remaining amendments are voted on in quick succession.
All of this is designed to facilitate Congress in making a budget plan, then actually sticking to it. Of course, determined congressional majorities, especially when given clear guidance by a determined President, have used reconciliations rules for purposes beyond the original intent. The first notable event in this history occurred in 1981 when President Reagan and the GOP Senate majority used it to cut spending and taxes by a significant amount. As legislative expert Walter Oleszek has written, “Never before had reconciliation been employed on such a grand scale.”
Liberals like Klein will suggest that this justifies, in some ethical sense, the use that Harry Reid is now apparently planning for budget reconciliation. Conservatives will use words like “jam” and “ram” and phrases like “the nuclear option” to argue that there is no such justification.
When it comes to legislative procedure, I am a strict Hobbesian. There is what a Senate majority can do, and what it can’t do. “Appropriate” or “inappropriate” are not applicable phrases. Congress is sovereign over its own procedures, which are the product of self-interested members working to secure reelection and/or policy goals. Morality doesn’t enter into it. (See the note at the bottom of this post for another thought on this topic.)
I’ll go a step further to suggest that people with strong policy preferences should rarely be listened to in a debate about appropriate procedure. People who care intensely about the final vote tally often don’t care how the votes are counted, so long as they get their preferred outcome. This is why there was no hue and cry coming from most of these born-again majoritarians on the left when the Democrats were looking to filibuster judicial nominees in 2005. It is easy to find numerous examples of conservative hypocrisy on this subject, too.
Obama now approaches the Rubicon. The Senate is in disarray. Its procedures frustrate his purposes. Before crossing the river with his army, Julius Caesar is reported to have said, “Let the dice fly high!” For what stakes does Obama gamble?
First, the imposition of a House-Senate health-reform hybrid would confirm the worst modern image of the Democratic Party, that of intellectual arrogance. Parties hurt themselves most when they confirm a destructive public judgment. In this case, Americans would see Democrats pushing a high-handed statism. It is amazing how both parties, when given power, seem compelled to inhabit their own caricatures.
Second, this approach would almost certainly maintain conservative and Republican intensity through the November elections. In midterm elections, it is intensity that turns a trend into a rout. It is one thing to pour gasoline on a populist bonfire. It is another thing to pour gasoline on a populist bonfire while one is already being roasted.
Third, this action would undermine Obama’s own State of the Union strategy, which seemed like a shift toward the economy and away from health-care reform. The White House finds it impossible to settle on a strategy and stick with it. Democrats keep being drawn back into debates — Reid is now proposing the return of the “public option” — they have lost decisively, as if one more spin of the roulette wheel will recover their losses.
Fourth, a reconciliation strategy would both insult House and Senate Republicans and motivate them for future fights. The minority would not only be defeated on health reform but its rights would be permanently diminished — a development that would certainly be turned against Democrats when they lose their majority. Each side would have an excuse for decades of bitterness, creating a kind of political karma in which angry spirits are reincarnated again and again, to fight the same battles and suffer the same wounds.
Fifth, Obama would manage to betray many politically vulnerable members of his own party, proving himself a party leader of exceptional selfishness. Because the legacy of his presidency is at stake, or because of his pride, or because he is ideologically committed to an expanded public role in health care, Obama is pressuring Democratic members to join a suicide pact. When a president doesn’t care about his party, his party eventually ceases to care about him.
Democratic leaders respond: Since we have already taken the damage for proposing health reform, we might as well get the benefit for passing something. But there is always more damage to be taken on a self-destructive political path. And, in this case, there is a respectable alternative: approve and take credit for incremental reforms while blaming Republicans for blocking broader changes.
Obama’s decision on the use of reconciliation will define his presidency. If he trusts in his charmed political fortunes and lets the dice fly, it will raise the deepest questions about his judgment.
Or maybe God just figured that Joe Biden wasn’t terribly serious about this 2005 prayer, unearthed by Breitbart TV and Naked Emperor News today. He was not the only Democrat bemoaning “majoritarian, absolute power,” either, or complaining about unilateral rules changes at that time. Barack Obama and Hillary Clinton join Biden as current administration officials who have suddenly seen the light of majoritarian power:
[…]
“I pray God when the Democrats take back control we don’t make the kind of naked power grab you are doing.”
Dianne Feinstein said on the Senate floor that “it begins with judicial nominations, next will be executive appointments, and then legislation.” Now, Democrats want to skip over the first two — which never happened — and leap right to legislation. Chuck Schumer called the 2005 suggestion to exempt judicial nominations from the filibuster as “almost a temper tantrum”; if that was the case in 2005, what does 2010 represent? A psychotic break from reality? Strauitjacket time?
It smells like desperation from a political party groaning under the heavy burden … of an eighteen-seat majority.
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.
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.
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.
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.”
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.
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.
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.”
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.
James O’Keefe, the conservative filmmaker who posed as a pimp in video stings at ACORN field offices, has been arrested by the FBI at Sen. Mary Landrieu’s (D-LA) office in downtown New Orleans, in connection to what appears to be an attempt to wiretap the offiice, NOLA.com reports:
FBI Special Agent Steven Rayes alleges that O’Keefe aided and abetted two others, Joseph Basel and Robert Flanagan, who dressed up as employees of a telephone company and attempted to interfere with the office’s telephone system.
A fourth person, Stan Dai, was accused of aiding and abetting Basel and Flanagan. All four were charged with entering fedral property under false pretenses with the intent of committing a felony.
O’Keefe gained notoriety for his secretly filmed ACORN videos, which caused a firestorm of media intrigue surrounding ACORN after O’Keefe posted them on the Andrew-Brietbart-owned blog Big Government last year.
The Times-Picayune has not posted the full FBI affidavit, but the details they have are damning. This is neither a time to joke nor a time to recklessly accuse Democrats/liberals of setting this up — nor a time to whine about media coverage double standards. Deal with what’s on the table
UPDATE x3: OK, final word. I’m sticking out my neck and declaring that I think this will prove to be a big nothing.
I just don’t believe this guy was wiretapping phones or trying to do so. I really don’t.
It might not even have been an attempt to show how easy it would be to bug phones. Maybe there is another explanation. But I don’t think he was acting in a criminal fashion. I don’t.
But this guy is no journalist – conservative or otherwise. He’s a glory hound. And, if these charges pan out, prove the adage that you’re only as good as your next spectacular. The nature of modern celebrity demanded that O’Keefe try and top his ACORN show. Taping the private conversations of Landrieu and spilling them out all over YouTube would have kept him on top of the heap.
Fortunately, the FBI had other ideas and now O’Keefe faces the prospect of doing hard hitting exposes about prison food.
Mainstream Media, ACORN, Media Matters (all the supposed defenders of due process and journalistic ethics) are jumping to conclusions over the arrest today of James O’Keefe, with the clear intention to smear and, if possible, convict O’Keefe and his alleged co-conspirators in the court of public opinion in order to taint the “jury of their peers.”
The ACORN story was a huge black eye for the organized left and their allies and cohorts in the mainstream media. So they are relishing every minute of this breaking story, making it their top story – while they ignored the initial ACORN story until they no longer could.
MSNBC and other “news organizations” are even billing this developing story as “Watergate”. What do Keith Olbermann and Rachel Maddow know? And when did they know it?
I’m sure they would like to believe O’Keefe is stupid enough to try to “wiretap” a sitting U.S. senator in broad daylight during office hours, while recording the entire sequence of events on his cell phone camera. And they’d like you to believe it, too.
But there is absolutely no allegation in the criminal complaint that “wiretapping” or “bugging” is any part of this case, just the charge that O’Keefe and the others entered Sen. Landrieu’s office in New Orleans “for the purpose of interfering with the office’s telephone system.”
O’Keefe had become a conservative media star since the ACORN sting. I just talked to Lisa De Pasquale, director of CPAC, who said that O’Keefe, along with co-stinger Hannah Giles and Andrew Breitbart, is (or was) under consideration for the annual conservative conference’s coveted Reagan Award.
Mike Flynn, the editor of Big Government–where the ACORN videos originally appeared–told me that the conservative news site had no knowledge of what O’Keefe was up to.
“We had absolutely no clue what he was up to,” said Flynn, “and now you see why! It’s a complete surprise to us. We’ll just see what happens.”
And, of course, Fox News, which was one of the outlets that pushed hardest to turn O’Keefe into a folk hero, is taking the position that this Landrieu office incident is a story “that probably needs a lot of context and a lot of looking into” before anyone jumps to conclusions. Unlike, say, videos of a white boy in garish pimp clothes which are prima facie evidence of … something.
STAN DAI, Lisle, Ill., attends The George Washington University majoring in Political Science. He is editor-in-chief of The GW Patriot, an alternative conservative student newspaper, a Club 100 Activist of Young America’s Foundation, and an Undergraduate Fellow on Terrorism of the Foundation for the Defense of the Democracies. He is co-founder of GW’s Students Defending Democracy, a volunteer on several political campaigns, and active in the GW College Republicans and GW Colonials for Life. He was a 2003 Honorable Mention in the U.S. Institute of Peace Essay Contest.
One Stan Dai was listed as the Assistant Director of the The Intelligence Community Center of Academic Excellence (ICCAE) at Trinity (Washington) University. The ICCAE says it prepares young people for careers in intelligence.
And Breitbart playing dumb about the activities of his newest pet conservative media darling strains credulity. First of all, O’Keefe was Tweeting that he was up to something. If O’Keefe was truly a free agent, wandering the nation taking down liberals on his own time and selling the videos to the highest bidder, then sure, Breitbart didn’t know. But O’Keefe’s on the BigGovernment payroll.
HH: And are you free to tell me how much you pay him?
AB: I’ll…perhaps at another date, but he’s paid a fair salary.
HH: Is he…so he is an employee?
AB: I’m not sure that’s technically the thing, but yes, he’s paid for his life rights. And he’s, you know, he’s still…we reserve the right to say yes or no to any of the stories that he puts up on our site as we do to any other contributor who comes to the site.
HH: Will it be a mischaracterization to say he was working for you when he went about this?
AB: Well, I mean, no. He was not involved in anything that was related to Big Government, or Breitbart.com.
HH: And I think that’s the key thing. Lots of people work for lots of corporations, and do dumb and sometimes illegal things that are not within the scope of their employment. And this was not within the scope of his employment.
AB: Yes, absolutely. That is absolutely the case.
So… Andrew’s websites pay O’Keefe a salary and have right of first refusal for the work he produces as an “independent filmmaker.” But the work he did when he attempted to film himself and his friends sneaking into the office of a US Senator to tamper with her phones does not count as work done for Andrew’s sites. (I guess because it wasn’t finished?) Lots of people do illegal things “that are not within the scope of their employment,” sure, but O’Keefe’s job is actually sneaking into places under false pretenses and filming it without permission, for Andrew’s websites.
Rick Warren, pastor of Saddleback Church and author of the bestselling book The Purpose Driven Life, drew fire last year when he was invited to give the invocation at President Obama’s inauguration. His support for Proposition 8 in California, which defined marriage as between a man and a woman only, and his anti-gay-marriage views concerned many in Obama’s base.
Now Warren’s on the defensive again, this time for his affiliation with Martin Ssempa, a Ugandan pastor who has endorsed proposed legislation in Uganda that makes certain homosexual acts punishable by life in prison or even, in some cases, death. Ssempa has made appearances at Saddleback and has been embraced warmly by Warren and his wife, Kay.
In October, Warren distanced himself from Ssempa and the Ugandan legislation, saying, “Martin Ssempa does not represent me; my wife, Kay; Saddleback Church; nor the Global PEACE Plan strategy,” a reference to Warren’s work in the developing world and Africa in particular. “In 2007 we completely severed contact with Mr. Ssempa when we learned that his views and actions were in serious conflict with our own.
“Our role, and the role of the PEACE Plan, whether in Uganda or any other country, is always pastoral and never political. We vigorously oppose anything that hinders the goals of the PEACE Plan: Promoting reconciliation, Equipping ethical leaders, Assisting the poor, Caring for the sick, and Educating the next generation.”
But Warren won’t go so far as to condemn the legislation itself. A request for a broader reaction to the proposed Ugandan antihomosexual laws generated this response: “The fundamental dignity of every person, our right to be free, and the freedom to make moral choices are gifts endowed by God, our creator. However, it is not my personal calling as a pastor in America to comment or interfere in the political process of other nations.” On Meet the Press this morning, he reiterated this neutral stance in a different context: “As a pastor, my job is to encourage, to support. I never take sides.” Warren did say he believed that abortion was “a holocaust.” He knows as well as anyone that in a case of great wrong, taking sides is an important thing to do.
Ah, to be Rev. Rick Warren on a “very special” Thanksgiving Meet the Press. Despite being connected to a Ugandan minister who supports the death penalty for gays, you don’t get asked about it — not even in a follow-up to the interview that occurred weeks earlier — and you aren’t pressed to explain your “I’m not a politician” position while calling abortion a “holocaust” and discussing your public position in opposing same-sex marriage in California.
One of Rick Warren’s (and president George W. Bush’s) longtime allies in Uganda, Martin Ssempe, is the author of a classic piece of minority-baiting legislation. Its details belong in the history of genocidal hatred:
The Ugandan penal code already criminalizes sexual relations “against the order of nature,” a characterization that is frequently used to prosecute gays. Under the proposed Anti-Homosexuality Bill of 2009, homosexual relations are specifically targeted. Anyone in a position of authority who is aware of a gay or lesbian individual has 24 hours to inform police or face jail time. Individuals found to engage in efforts to sexually stimulate another for the purpose of homosexual relations, or found touching another for that purpose, will face life in prison. Those who engage in “aggravated homosexuality” — defined as repeated homosexual relations or sexual contact with others who are HIV/AIDS infected — will face the death penalty.
This is an act of terror and murder against an already beleaguered minority, and Warren is an accessory to it. As a powerful figure in distributing AIDS funding in Uganda, he cannot bring himself to oppose a law that would condemn someone in a gay relationship to death, and imprison him or her for touching another human being, and inciting a wave of informing on family members and friends and acquaintances in order to terrify a sexual minority. This alleged man of God cannot speak out on this – except to protect his own p.r. His schtick of actually being the nice evangelical – a schtick that got him to Obama’s inauguration – is a lie. If he cannot condemn this fascist act of violence against a tiny minority of vulnerable human beings, then his position in this struggle is clear enough.
Andrew highlights the vicious homophobia of Pastor Rick Warren’s main ally in Uganda, a minister named Thomas Ssempa who burns condoms and seems ready to burn gays as well. I know Rick Warren fairly well, and though we disagree on some issues, he’s a good man who does good deeds across the planet, and it seems that he should be teaching Ssempa the error of his ways. I’ve e-mailed Rick to see what he has to say about Ssempa’s homophobia.
He is taking sides. He believes abortion is a holocaust and it’s sometimes acceptable for homosexuality to be punished with the death penalty. That’s “taking sides” if ever I saw it.
As historian Howard Zinn says, you can’t be neutral on a moving train. We’re all resisters or collaborators by nature, even if we fold our hands and claim to be doing nothing because “doing nothing” allows those who are doing something (like actively promoting the killing of homosexuals) to operate unimpeded. So the train is moving in Uganda toward death sentences for gay people, and if pastor Ssempa is the train conductor, Rick Warren is at least a porter.
Around The Sphere 