Who says fun things don’t come on Fridays? There is some nice little spooky news on the wire this afternoon. Jeffrey Sterling, a former veteran CIA agent on the Iran beat, was charged back in January with leaking classified information to a reporter. the reporter is widely known and accepted to be none other than the New York Time’s James Risen, and the material supposedly was contained in his book State of War. The prosecution, headed by DOJ leak hitman William Welch (disgraced supervisor in the unethical prosecution of Ted Stevens). For some unknown reason, Welch was installed by the Obama/Holder DOJ as head of their unprecedented crackdown on leaks to the media.
Looks like Welch may have gotten in front of himself again. From the Washington Post:
The government’s case against an ex-CIA officer charged with leaking classified documents to a reporter may not make it to trial because of potential issues with a witness, a federal prosecutor said Friday.
At a pretrial hearing Friday in U.S. District Court, prosecutor William Welch told the judge that “potential witness issues” will determine “whether the case goes to trial or not.” He did not elaborate.
Uh huh. What this really means is the court is not likely to change its mind about compelling Risen to testify – Judge Brinkema has already refused and quashed a subpoena once – and the DOJ’s own written guidelines make it hard for them to pursue that further. Oh, and they bloody well do not have enough admissible evidence to make their case without Risen. Makes you wonder just how, and how legally, the prosecution got much of their evidence.
Something you might would have thought a guy like Welch, who has made such an embarrassment of himself in prior big public cases, would have figured out ahead of time. Hey, who knows, maybe Welch can salvage his witchhunt against Sterling and Risen somehow; but you sure don’t see this kind of banter in open court when things are all nice and rosy.
William Welch’s mojo ain’t Risen.
As a follow up to yesterday afternoon’s decision in the WikiLeaks grand jury subpoena case, it is, shall we say, interesting that the New York Times today comes out with and editorial slamming democracies that use secret evidence and maneuvers to prosecute journalists.
The editorial is titled No Way to Run a Democracy and it doesn’t spend one word of it on the rabid use of just those tactics in relation to WikiLeaks and Julian Assange (See here and here). Nor has there been any comparable outrage over the US actions against WikiLeaks journalists in any other NYT effort and/or article.
Now, make no mistake, the plight of investigative journalists in Turkey under threat from the administration of Prime Minister Erdogan is extremely troubling, and it is commendable that the Gray Lady has called it out. But it does make you wonder where the same outrage is in relation to the First Amendment eviscerating effort of the US Department of Justice toward WikiLeaks and Assange. An investigation which could, and if it is taken to its logical conclusion, should involve the Times itself.
Maybe it is because Bill Keller reached some agreement with the DOJ not to trash them in return for DOJ laying off the NYT during one of his endless tete a tetes with them over quashing news reporting, maybe Keller and the Times are fearful that they don’t have some kind of secret agreement with the DOJ, maybe it is the product of the merging of the media and government in the US, or maybe it is because of Keller’s irrational and unprofessional extreme dislike of, and contempt for, the “dirty” Julian Assange and WikiLeaks.
Whatever the reason, the stridence against the Erdogan government actions contrasted with the silence toward the domestic Obama government actions is telling.
I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.
But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.
The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.
So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.
Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.
The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme. Continue reading
One of last Friday’s big stories somewhat lost in the hustle and focus on the BP Gulf oil disaster and the holiday weekend concerned the continuing outrage of the US drone targeted assassination program. Specifically, Charlie Savage’s report at the New York Times that the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, was expected to issue a report calling on the United States to stop Central Intelligence Agency drone strikes thus “complicating the Obama administration’s growing reliance on that tactic in Pakistan”.
Today, the report is out, and Charlie Savage again brings the details in the Times:
A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads.
In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston,the United Nations Special Rapporteur on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. The report — the most extensive effort by the United Nations to grapple with the legal implications of armed drones — also proposed a summit of “key military powers” to clarify legal limits on such killings.
In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible.”
Interestingly, Alston’s report comes hot on the heels of the news the biggest get yet for the Obama drone assassination program, Al-Qaida Number Three (or at least the latest Number Three) Mustafa Abu al-Yazid. But Alston, although indicating that al-Yazid migh could be distinguished because of the direct al-Qaida status, nevertheless expressed reservations even is such situations.
For example, it criticized the United States for targeting drug lords in Afghanistan suspected of giving money to the Taliban, a policy it said was contrary to the traditional understanding of the laws of war. Similarly, it said, terrorism financiers, propagandists and other non-fighters should face criminal prosecution, not summary killing. Continue reading
The New York Times has an article up that will appear in the front section of Wednesday’s print edition decrying the fact that racial selection and exclusion still maintain in jury selection for trials in the South.
Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.
While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.
The Equal Justice Initiative study argues that jury diversity “is especially critical because the other decision-making roles in the criminal justice system are held mostly by people who are white.” In the eight Southern states the study examined, more than 93 percent of the district attorneys are white. In Arkansas and Tennessee, all of them are white.
Race based selection and exclusion in the formation and empanelment of juries is prohibited, and rightly so. It is considered improper, unethical and a violation of duty to the court, bar and public. And rightfully so. There mere inference of it, as is made clear by the numerous instances discussed in the NYT article can bring strong questions of propriety, especially for representatives of the people, i.e. prosecutors. And, as the Equal Justice Initiative points out, the systematic exclusion of people of color from public leadership roles, like prosecutors, is just as problematic and disgraceful.
It is a righteous thing the New York Times has emphasized and drawn attention to the depressing report by the Equal Justice Initiative on racial exclusion in the law. Which makes it all the more distressful that the famed Gray Lady of the Times never evinced the same concern about analogous inferences which could just as easily be drawn about Elena Kagan’s record of faculty hiring at Harvard Law School.
First raised by Duke Law Professor Guy Uriel Charles, and noted by other bloggers like Glenn Greenwald and yours truly (but never substantively addressed or reported by the New York Times or other major media), Kagan has a record that puts the examples in the New York Times article on Southern jury biases to shame. From Professor Charles:
But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 32 new hires, only six seven were women. So, she hired 25 white men, six white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That’s a racist and sexist statement. It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan’s tenure. To believe otherwise is to harbor troubling racist Continue reading
It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.
The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).
Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:
Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.
The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.
A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.
Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.
This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure. Continue reading
The inevitable has been announced; Bob Lutz is leaving Ed Whitacre’s new General Motors. From the New York Times:
Vice Chairman Bob Lutz will retire from the automaker effective May 1, people briefed on the plans said on Wednesday.
Lutz, 78, had been serving as a senior adviser to GM Chairman and Chief Executive Ed Whitacre after shelving retirement plans to take charge of the automaker’s marketing after it emerged from bankruptcy in July 2009.
The announcement comes a day after GM shook up its sales and marketing operations in its home market for the third time in five months.
Lutz was charged with overhauling GM’s marketing efforts under former CEO Fritz Henderson, but he appeared to have been sidelined by Whitacre, a former AT&T executive brought in by the Obama administration.
In late February, Whitacre named Stephen Girsky, a former investment banker, as special adviser and vice chairman in charge of corporate strategy, a move that raised questions about the tenure and role of Lutz.
And it really was inevitable. Last December when Fritz Henderson was unceremoniously dumped in a midnight putsch by Ed Whitacre, the former corporate phone boy from AT&T, we had some things to say here. Marcy, noting Whitacre’s professed desire to ram products to market quicker – to do everything quicker – observed:
Now maybe it would be possible to bring out new products more quickly. Maybe there is merit to disrupting the very complex model year and product cycle schedules that every car company relies on to manage new product introductions.
But I worry that this push to introduce products more quickly will come at a price–the price of doing it right, both from an engineering perspective (you don’t want the Cruze to come out with all sorts of recalls, after all) and from a marketing perspective (if you introduce a product but don’t have the marketing budget to support it, it’s not going to do much good).
And I commented that the Whitacre putsch had other consequences too:
There is one other consideration. With Fritz gone, the only marketable face GM has left to the actual auto people is Bob Lutz, and he will bolt in a heartbeat if he thinks the wrong car decisions are being made. Lutz is very comfortable with the big money wheeler dealers, but he is, first and foremost, a car guy all the way. And he does not need the money or grief. If they were to lose Lutz in any short order in addition to Henderson, they will have a potential real mess.
Well it turns out the thoughts may have been prescient. And make no mistake, Lutz is in fine health and as active and ornery as ever; he is leaving because Continue reading
From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.
Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this intolerable indignity by compiling an enormous and permanent computerized database of these encounters between innocent New Yorkers and the police.
Not only are most of the people innocent, but a vast majority are either black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.
Police Department statistics show that 2,798,461 stops were made in that six-year period. In 2,467,150 of those instances, the people stopped had done nothing wrong. That’s 88.2 percent of all stops over six years. Black people were stopped during that period a staggering 1,444,559 times. Hispanics accounted for 843,817 of the stops and whites 287,218.
“They have been collecting the names and all sorts of other information about everybody who is stopped and frisked on the streets,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which is fighting the department’s stop-and-frisk policy and its compiling of data on people who are innocent. “This is a massive database of innocent, overwhelmingly black and Latino people,” she said.
Bob Herbert is right, it is “a gruesome, racist practice”. Thank god we have a Constitutional law scholar President, expert in civil rights and dedicated to protecting the liberties afforded by them. This is a perfect situation for the President’s Privacy and Civil Liberties Oversight Board!
When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration’s indifference to the subject.
But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to Continue reading
In a full throated mea culpa by the New York Times Public Editor, Clark Hoyt, appearing in the Sunday edition, the Times officially describes the critical and material implications that arise when readers are misled by undisclosed interests of sources and authors in their paper of record.
These examples have resulted in five embarrassing editors’ notes in the last two months — two of them last week — each of them saying readers should have been informed of the undisclosed interest. And on Thursday, the standards editor sent Times journalists a memo urging them to be “constantly alert” to the outside interests of expert sources. The cases raised timeless issues for journalists and sources about what readers have a right to know and whose responsibility it is to find it out or disclose it.
That is exactly right. One of the prime examples the Times’ Public Editor bases his proper conclusion on is that of Jonathan Gruber:
Jonathan Gruber, a prominent M.I.T. health economist, wrote an Op-Ed column and was quoted frequently in other Times columns, news articles and blogs on health care reform before it came to light that he had a contract worth nearly $400,000 to analyze health proposals for the Obama administration.
Gruber, the health care economist, wrote an Op-Ed column in July supporting an excise tax on so-called Cadillac health plans. Not long before, he had signed a contract with the Department of Health and Human Services to analyze the economic impact of various health care proposals in Congress. He did not tell Op-Ed editors, nor was the contract mentioned on at least 12 other occasions when he was quoted in The Times after he was consulting for the administration. After a blogger reported on Gruber’s government contract on the Daily Kos Web site, Gruber did volunteer it to Steven Greenhouse, a Times reporter interviewing him for an article on the excise tax. Greenhouse said he included the fact in a draft but struck it because the article was too long. Greenhouse said that Gruber’s views on the tax were so well-known that he did not think they would be influenced by a consulting contract. But had he realized how large the contract was, Greenhouse said, “I would have stood up and paid lots more attention.”
While it is nice the Times has admitted its problem with Gruber, and his wantonly serial failure to disclose material facts and appearances of conflict, it is extremely curious and convenient they dodge the most recent, and in many regards most glaring, example of their damage from Gruber’s Continue reading
Michael Roston asks an intriguing question: did the NYT refuse to print Shenon’s story about Rove’s back-channel communications with Philip Zelikow?
While some questions have been raised about the accuracy of Shenon’s report, there’s another matter that we need to address: why didn’t Shenon’s story run in the New York Times itself? Why was it saved for his book instead of run above the fold in America’s paper of record?
The Commission’s report came out in the Summer of 2004, and you’d have to think that some of this story about executive director Philip Zelikow’s dilution of the report would have been in Shenon’s hands sooner. It’s hard to imagine that he wouldn’t tell his Times’ editors about this. White House interference in such an esteemed commission, trying to make sense of the 9/11 attacks and their aftermath as it did, would be a story of the year in whatever year it emerged. So why 2008 instead of 2004 or 2005 or 2006? Did it really take so long for any of the disenchanted commission staff to be willing to come forward?
Now, Shenon has been off the 9/11 Commission beat for some time, publishing only one story on it since 2004. So maybe there’s a very simple answer. But as Roston reminds us, as I’ve posted before, and as Shenon himself reminds us in the other big NYT story of the week, the NYT has a history of leaving some of its reporters’ best scoops off the pages of the Gray Lady. In his story reporting that James Risen has been subpoenaed for the source for a chapter in his book, State of War, Shenon reveals that the chapter in question is one not included in the stuff the NYT printed.
Mr. Risen’s lawyer, David N. Kelley, who was the United States attorney in Manhattan early in the Bush administration, said in an interview that the subpoena sought the source of information for a specific chapter of the book “State of War.”
The chapter asserted that the C.I.A. had unsuccessfully tried, beginning in the Clinton administration, to infiltrate Iran’s nuclear program. None of the material in that chapter appeared in The New York Times. Continue reading