Barnett Rubin offers an explanation for something we’ve been pondering for some time: why has the Taliban been blowing up cell phone towers in Afghanistan?

Setting up a cell phone tower anywhere in Afghanistan requires the consent of whoever "controls" the territory, or at least has the power to blow up the cell phone tower.

I have not yet been able to conduct a systematic survey of where the four mobile phone companies in Afghanistan (Afghan Wireless, Roshan, Etisalaat, and Areeba) pay the Taliban or other powerholders taxes/extortion/bribes to protect their phone towers, but one friend in the business says that the companies have to pay the Taliban in most of southern Afghanistan, right up to Kabul province.

[snip]

I have been told that Taliban (or people claiming to represent them) sometimes call up mobile phone companies and claim that they are right at a tower with explosives, which they will detonate unless money is immediately transferred to their mobile phone. This is a new technology that enables migrant workers to send cash home without going through either a hawala or Western Union.

What to make of this? It has contradictory implications. My inquiries thus far indicate that Taliban (or people claiming to be Taliban) are able to launch profitable small military operations (blowing up cell phone towers) or at least to make credible threats of doing so in most of the area south of Kabul and as far west as the southern part of Herat province. This does not mean that Taliban "control" these areas. No authority "controls" most of these areas. But Taliban, insurgents, or criminal armed groups can operate there with impunity. They can infiltrate. If these groups can also be coordinated (a big question), they have much greater capacity for disruption than they have shown thus far.

On the other hand, their behavior is nothing like al-Qaida. I have not seen any such documents emanating from Ayman al-Zawahari’s office giving his cell phone number. The document shows that some Taliban, at least, are trying to operate within the administrative structure of the Afghan state, even if they are trying to subvert it (or extract money from the private sector operating with its consent). Protection of cell phone towers in Wardak is an eminently negotiable issue, unlike, say, replacing the nation-state system with an Islamic caliphate or ending all US influence in the Muslim world. [my emphasis]

In other words, the threats and destruction of cell phone towers is a good old fashioned protection racket, with the added benefit that cell companies can fill phones with "currency" almost instantaneously (does Rubin mean this is real currency, or just minutes?).

The press is agog that Hillary Clinton sat down with–and wooed–her long time personal vast right-wing conspiracy funder, Richard Mellon Scaife.

NYT:

But in a striking about-face, Mr. Scaife now says he has changed his mind — at least about one half of the duo.

Fox:

 Scaife, who unnerves some conservatives with countervailing positions on abortion and the war in Iraq, said he still wants to hear from Barack Obama before his newspaper endorses a candidate in Pennsylvania’s April 22 primary.

ABC:

Richard Mellon Scaife, a major funder of the 90s-era Vast Right Wing Conspiracy — specifically, The American Spectator and its "Arkansas Project" — today reconsiders his former nemesis in an op-ed in his newspaper, the Pittsburgh Tribune-Review.

JMM: 

This alone has to amount to some sort cosmic encounter like something out of a Wagner opera. Remember, this is the guy who spent millions of dollars puffing up wingnut fantasies about Hillary’s having Vince Foster whacked and lots of other curdled and ugly nonsense.

Aside from the fact that it is quite common for the poobahs of newspapers to meet with political candidates leading up to an election in their community (and Scaife suggests he’ll meet with Obama, too), I think the meeting ought to be put in context with Bill Clinton’s earlier meeting with Scaife, back in November (a meeting only ABC’s Tapper notes in his coverage), one carefully stage-managed by Scaife’s vast right wing conspirators of the 1990s, Christopher Ruddy and Michael Isikoff. Scaife’s revisionary history of his involvement in the Clintons’ woes started when, in November, Ruddy called Bubba "part Merlin and part Midas."

Bill Clinton now finds himself the unlikeliest of Scaife heroes. Last month Ruddy posted a softball interview with Clinton on the Newsmax site (sample question: "What is the best thing about being an ex-president?"). A worshipful cover story followed in the current edition of the magazine. Clinton, it gushed, is "a political and cultural powerhouse" who is "part Merlin and part Midas—a politician with a magical touch."

The earlier Clinton-Scaife thaw was brokered, according to Ruddy, by Ed Koch. And as happened on Friday with Hillary, Bubba reportedly wowed Scaife. In other words, Hillary’s schmoozing of Scaife comes after he already developed a crush on her husband.

I assume the Clintons have reached out to Scaife for no other reason than they would love his support–and barring that, they would love for him and his wingnut bloodhounds to stay out of their underwear drawers.  But what is Scaife looking for?

I think Fox may offer the key: foreign policy. Scaife has soured on Bush’s little war. As he says, in his own op-ed on Clinton:

Particularly regarding foreign policy, she identified what we consider to be the most important challenges and dangers that the next president must confront and resolve in order to guarantee our nation’s security. Those include an increasingly hostile Russia, an increasingly powerful China and increasing instability in Pakistan and South America.

Like me, she believes we must pull our troops out of Iraq, because it is time for Iraqis to handle their own destiny — and, more important, because it is past time to end the toll on our soldiers there, to begin rebuilding our military, and to refocus our attention on other threats, starting with Afghanistan. [my emphasis]

It’s a sentiment expressed, too, about the meeting with Bubba.

What is going on here? Scaife declined to comment, but Ruddy tells NEWSWEEK he and Scaife believe Clinton’s life since leaving office has been "very laudable," and that he is doing "very important work representing the country when the U.S. is widely resented in the world." [my emphasis]

Which suggests that, as early as November (when only Ron Paul and, to a lesser degree, Mitt, advocated for a pull-out on the Republican side), Scaife may have realized he cannot blindly support the Republican brand this year. And currently, faced with a 100-year war McCain presidency, Scaife is stuck siding with Democrats, at least on foreign policy.

There’s probably more–which we’ll see after his interview with Obama (not least since, on all these issues, Obama is actually stronger than Hillary). But for the moment, it’s worth noting that even the godfather of vast right-wing conspiracy cannot abide by the damage Republicans are doing to America’s place in the world. Perhaps, in the face of the Iraq catastrophe and the abdication of America’s moral authority, panty-sniffing no longer seems so important.

I’m no financial whiz (though I understand the general concept of the shitpile), so I can’t really judge the content of Paulson’s "new" plan to save our economy. But I do have a credential or two in deconstructing rhetoric–and on that level the executive summary is a fascinating document. The summary, after all, is a Bush Treasury plan to stave off any additional regulation in exchange for our recent and ongoing bailout of the financial industry. As such, it’s imperative for the summary to appear to be putting consumers’ interests at the forefront. It’s imperative for the document to downplay the panic which would justify real regulation. And it’s imperative to create the appearance of a reasoned response to a massive bailout while actually calling for diminished regulation.

We’re All Bankers Now

The summary starts by pretending that the primary purpose of the Department of the Treasury is to ensure a competitive (but stable) financial services industry.

The mission of the Department of the Treasury ("Treasury") focuses on promoting economic growth and stability in the United States. Critical to this mission is a sound and competitive financial services industry grounded in robust consumer protection and stable and innovative markets.

Note how this differs from the Treasury’s stated mission–to ensure the overall health of US finances, not just the competitiveness of the financial services industry.

Serve the American people and strengthen national security by managing the U.S. Government’s finances effectively, promoting economic growth and stability, and ensuring the safety, soundness, and security of the U.S. and international financial systems.

The Treasury summary justifies turning a broad mandate for ensuring the overall fiscal health of the economy into this narrow emphasis on financial services this way:

Financial institutions play an essential role in the U.S. economy by providing a means for consumers and businesses to save for the future, to protect and hedge against risks, and to access funding for consumption or organize capital for new investment opportunities. [my emphasis]

So note, even before the summary gets into the guts of its proposed changes, it has jettisoned its concern for "safe, sound, and secure US and international financial systems" in favor of "innovative and stable financial services industry." And it has transformed your average consumer (some might call them taxpayers or even citizens) into actors who "save for the future" or "access funding for consumption." It has probably only included that consumption bit (which appears nowhere else in the summary) to establish a parallel function, for the little guy, to business’ interest in "organizing capital for new investment opportunities." But I find it instructive that a document partly responding to a giant credit crisis doesn’t talk about "providing a means for families to remain in their homes" or even "ensuring Americans can provide for their families," but instead reiterates the primary role accorded the little guy, in Bush’s economy, to consume.

At least, at this level, the summary is honest: as Chris Dodd makes clear, there is nothing in this document that helps real people survive the current crisis.

This Is Not a Crisis

In spite of the fact that the summary offers no help to those losing their homes, it attempts to pretend this document is at once a response to this crisis, but also a document that has been crafted over time. So, for example, the summary foregrounds its genesis in the time before the crisis, a year ago. It suggests that this long deliberative process resulted in both short and medium term recommendations.

Treasury began this current study of regulatory structure after convening a conference on capital markets competitiveness in March 2007. Conference participants, including current and former policymakers and industry leaders, noted that while functioning well, the U.S. regulatory structure is not optimal for promoting a competitive financial services sector leading the world and supporting continued economic innovation at home and abroad. Following this conference, Treasury launched a major effort to collect views on how to improve the financial services regulatory structure.

In this report, Treasury presents a series of "short-term" and "intermediate-term" recommendations that could immediately improve and reform the U.S. regulatory structure.

And only then does it (sort of) admit that these short term recommendations are really a response to what happened last week, not what happened last March.

The short-term recommendations focus on taking action now to improve regulatory coordination and oversight in the wake of recent events in the credit and mortgage markets.

I find the summary even more amusing when it tells the history of changing financial regulation in this country, which it portrays as a series of responses to crises. Except for this one, which it portrays as a response to an enhancement.

The regulatory basis for depository institutions evolved gradually in response to a series of financial crises and other important social, economic, and political events: Congress established the national bank charter in 1863 during the Civil War, the Federal Reserve System in 1913 in response to various episodes of financial instability, and the federal deposit insurance system and specialized insured depository charters (e.g., thrifts and credit unions) during the Great Depression. Changes were made to the regulatory system for insured depository institutions in the intervening years in response to other financial crises (e.g., the thrift crises of the 1980s) or as enhancements (e.g., the Gramm-Leach-Bliley Act of 1999 ("GLB Act")); but, for the most part the underlying structure resembles what existed in the 1930s.

Herein lies the central rhetorical game in this document. It admits that every other major change in regulatory structure in our history has been a response to a crisis: The Civil War, the Savings and Loan scandal, and most of all the Depression. The one exception it lists is the Gramm-Leach-Billey Act, better known as the repeal of the Glass-Steagall Act. Fifty years from today, this current crisis will likely be perceived as (among other things) the crisis caused by the repeal of the Glass-Steagall Act, which allowed financial services companies to do what banks used to do without the regulation that banks have. But rather than admit that we are in a crisis, Treasury would like you to believe that, for the first time in our regulatory history, they are suggesting a new regulatory structure because of previous enhancements, not a crisis. Rather than admit that the traditional and correct response to significant financial crises is to impose more regulation, Treasury is calling this something else so it can avoid doing what we’ve done with every previous crisis.

One Plus One Equals Three

And then the summary gets into its final word game, in which it creates the appearance of a regulatory structure that increases oversight for everyone, even while it carves out a regulatory exception so financial services companies can continue as they are–with little real oversight, even while benefiting from government backing. It does through what it calls regulation by objective, the central proposal dreamed up a year ago and tweaked in the last week.

The summary explains that it looked to other international examples to decide how it should reorganize the regulatory structure of the US.

In addition to these prior studies, similar efforts abroad inform this Treasury report. For example, more than a decade ago, the United Kingdom conducted an analysis of its financial services regulatory structure, and as a result made fundamental changes creating a tri-partite system composed of the central bank (i.e., Bank of England), the finance ministry (i.e., H.M. Treasury), and the national financial regulatory agency for all financial services (i.e., Financial Services Authority). Each institution has well-defined, complementary roles, and many have judged this structure as having enhanced the competitiveness of the U.K. economy.

Australia and the Netherlands adopted another regulatory approach, the "Twin Peaks" model, emphasizing regulation by objective: One financial regulatory agency is responsible for prudential regulation of relevant financial institutions, and a separate and distinct regulatory agency is responsible for business conduct and consumer protection issues. These international efforts reinforce the importance of revisiting the U.S. regulatory structure. [my emphasis]

Much later, after reviewing its short term fixes that respond to last week’s crisis (one of which is basically a retroactive rationalization for its Bear Stearns bailout), it returns to these international examples.

While there are many possible options to reform and strengthen the regulation of financial institutions in the United States, Treasury considered four broad conceptual options in this review. First, the United States could maintain the current approach of the GLB Act that is broadly based on functional regulation divided by historical industry segments of banking, insurance, securities, and futures. Second, the United States could move to a more functional-based system regulating the activities of financial services firms as opposed to industry segments. Third, the United States could move to a single regulator for all financial services as adopted in the United Kingdom. Finally, the United States could move to an objectives-based regulatory approach focusing on the goals of regulation as adopted in Australia and the Netherlands.

After evaluating these options, Treasury believes that an objectives-based regulatory approach would represent the optimal regulatory structure for the future. An objectives-based approach is designed to focus on the goals of regulation in terms of addressing particular market failures.

Yet after claiming it has adopted the Austrailian and Dutch solution–an objectives-based regulatory approach–it then pulls a fast one (and this fast one was almost certainly inserted in the last week). The Australian and Dutch solutions have two parts, one overseeing "prudential regulation" of financial institutions, and another overseeing business conduct. But here’s what the summary transforms those two parts into:

Such an evaluation leads to a regulatory structure focusing on three key goals:

• Market stability regulation to address overall conditions of financial market stability that could impact the real economy;

• Prudential financial regulation to address issues of limited market discipline caused by government guarantees; and

• Business conduct regulation (linked to consumer protection regulation) to address standards for business practices.

All of a sudden, in the last week, the objectives-based approach got a third, new, objective: "market stability regulation."

There’s a reason for this. The "prudential financial regulation to address issues of limited market discipline caused by government guarantees" is what we currently think of as banking regulation: the requirements that banks–and other insured institutions–have to meet in order to get that insurance. This is all the regulation and oversight that says, if the government is going to promise to bail out large financial institutions, it will make certain demands of those financial institutions, to minimize the chances that the government is going to have to bail out those institutions.

But the Bush Administration wants those regulations to continue to apply to only those institutions it already applies to: banks and credit unions and thrifts, even while it wants to institutionalize government bailouts for companies not regulated in this way.

So to avoid having to put new regulation and oversight on the hedge funds and other financial institutions that the government has now (Bear Stearns) and will bail out, it has created a third category, one not present in the Australian and Dutch examples: a "market stability regulation" function. This is rhetorical game the summary plays to avoid the obvious: that the government has no business guaranteeing financial institutions if it doesn’t also set some minimum expectations for those institutions.

Now, the summary does call for increased reporting requirements under this third authority. So presumably, this increased authority would have given the Fed the ability to demand all finance companies reveal their exposure to the shitpile (though it’s unclear how it would ensure that the finance companies would be any more honest with their disclosure than they were in this case). But beyond that, it does not give the Fed the ability to make general requirements on the companies it effectively will bail out.

It rationalizes the creation of this giant moral hazard through use of another fiction–the discussion of such bailouts in terms of systemic risks. You see, under this authority, the Fed would never be regulating or bailing out individual companies. No. It would be regulating the entire system.

With regard to corrective actions, if after analyzing the information described above the Federal Reserve determines that certain risk exposures pose an overall risk to the financial system or the broader economy, the Federal Reserve should have authority to require corrective actions to address current risks or to constrain future risk-taking. For example, the Federal Reserve could use this corrective action authority to require financial institutions to limit or more carefully monitor risk exposures to certain asset classes or to certain types of counterparties or address liquidity and funding issues.

The Federal Reserve’s authority to require corrective actions should be limited to instances where overall financial market stability was threatened. The focus of the market stability regulator’s corrective actions should wherever possible be broadly based across particular institutions or across asset classes. Such actions should be coordinated and implemented with the appropriate regulatory agency to the fullest extent possible. But the Federal Reserve would have residual authority to enforce compliance with its requirements under this authority. [my emphasis]

Which of course, eventually gets you to this position: in which Treasury proposes vast new powers for the Fed to bail out financial institutions, but cloaks those powers in terms of bailing out the entire system.

In addition, the Federal Reserve should have the ability to undertake market stability discount window lending. Such lending would expand the Federal Reserve’s lender of last resort function to include non-FIDIs. A sufficiently high threshold for invoking market stability discount window lending (i.e., overall threat to financial system stability) should be established. Market stability discount window lending should be focused wherever possible on broad types of institutions as opposed to individual institutions. In addition, market stability discount window lending would have to be supported by Federal Reserve authority to collect information from and conduct examinations of borrowing firms in order to protect the Federal Reserve (and thereby the taxpayer). [my emphasis]

Never mind that such bailouts will eventually translate into the bailout of individual companies–as it did with Bear Stearns. Never mind that this puts the same folks who were cheerleading the creation of the shitpile in the first place (and are still, in principle, with this document) in charge of deciding when such actions turn from "innovation" into "systemic risk."

What the Administration is saying with the creation of this third category is, "We want to rationalize the financial regulatory system. But we want to retain an exception to such regulation for the wilder and more complex financial products. So rather than admit that such a system is no longer sustainable, we will institutionalize a general ‘re-set’ button for the entire financial system."

We will insist that the failed system remain substantially unchanged. But we will institute a way to repeatedly bail out the financial system the next time it proves–as it will–to be unsustainable.

Rather than admit that unrestrained capitalism doesn’t work, we will simply implement a process to bail out the entire system, any time it needs it.

But don’t worry. Treasury is also calling for the "authority to collect information from and conduct examinations of borrowing firms." You know. To protect the taxpayer.

I do hope that Eric Lichtblau’s book gets enough coverage this week to further stall Jello Jay’s attempts to ram through telecom immunity. The excerpt in the NYT today reveals that when the illegal wiretap program started in 2001, it had no specific legal authorization–not even from the compliant John Yoo!

Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”

Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.

At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.

The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.

The opinion itself remains classified and has not been made public. It was apparently written in late 2001 or early 2002, but it was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers.

So they started the program–purportedly–in October 2001. They bullied John Ashcroft into "approving" the program. But it took them several months before they went to John "organ failure" Yoo to get him to craft an opinion justifying the program. And that opinion–perhaps typically, for John Yoo–was "shoddy" enough that Comey and Goldsmith and Philbin had to rewrite it in 2004–after staging their hospital confrontation.

This passage also reveals how precarious Ashcroft’s position was, having approved the original program with no legal backing, and then learning in 2004 that he had had no business doing so. It makes his support of Comey and Goldsmith in the hospital confrontation much more akin to stories of how Comey convinced Ashcroft to recuse himself in the CIA Leak investigation–because it badly tainted his own authority–rather than a heroic stand from his ICU ward. Lucky for Ashcroft, then, that he’s getting rich at the DOJ teat. No wonder Ashcroft complained at that point that his staffers hadn’t had the authority to review the program. That was his defense for approving the program. Ignorance.

Which is, of course, what we still have operating–ignorance. And on that basis–on the same faulty basis Ashcroft used–Jello Jay and his Republican allies want to sign away our right to know.

I’m grateful for Eric Alterman’s long meditation on the future of newspapers, if only because he correctly balances a discussion of Walter Lippmann–who has rather bizarrely been adopted as the patron saint of American journalism–with John Dewey–who would in that formulation be the patron saint of blogging.

Lippmann likened the average American—or “outsider,” as he tellingly named him—to a “deaf spectator in the back row” at a sporting event: “He does not know what is happening, why it is happening, what ought to happen,” and “he lives in a world which he cannot see, does not understand and is unable to direct.” In a description that may strike a familiar chord with anyone who watches cable news or listens to talk radio today, Lippmann assumed a public that “is slow to be aroused and quickly diverted . . . and is interested only when events have been melodramatized as a conflict.” A committed élitist, Lippmann did not see why anyone should find these conclusions shocking. Average citizens are hardly expected to master particle physics or post-structuralism. Why should we expect them to understand the politics of Congress, much less that of the Middle East?

Lippmann’s preferred solution was, in essence, to junk democracy entirely. He justified this by arguing that the results were what mattered. Even “if there were a prospect” that people could become sufficiently well-informed to govern themselves wisely, he wrote, “it is extremely doubtful whether many of us would wish to be bothered.” In his first attempt to consider the issue, in “Liberty and the News” (1920), Lippmann suggested addressing the problem by raising the status of journalism to that of more respected professions. Two years later, in “Public Opinion,” he concluded that journalism could never solve the problem merely by “acting upon everybody for thirty minutes in twenty-four hours.” Instead, in one of the oddest formulations of his long career, Lippmann proposed the creation of “intelligence bureaus,” which would be given access to all the information they needed to judge the government’s actions without concerning themselves much with democratic preferences or public debate. Just what, if any, role the public would play in this process Lippmann never explained.

John Dewey termed “Public Opinion” “perhaps the most effective indictment of democracy as currently conceived ever penned,” and he spent much of the next five years countering it. The result, published in 1927, was an extremely tendentious, dense, yet important book, titled “The Public and Its Problems.” Dewey did not dispute Lippmann’s contention regarding journalism’s flaws or the public’s vulnerability to manipulation. But Dewey thought that Lippmann’s cure was worse than the disease. While Lippmann viewed public opinion as little more than the sum of the views of each individual, much like a poll, Dewey saw it more like a focus group. The foundation of democracy to Dewey was less information than conversation. Members of a democratic society needed to cultivate what the journalism scholar James W. Carey, in describing the debate, called “certain vital habits” of democracy—the ability to discuss, deliberate on, and debate various perspectives in a manner that would move it toward consensus.

Dewey also criticized Lippmann’s trust in knowledge-based élites. “A class of experts is inevitably so removed from common interests as to become a class with private interests and private knowledge,” he argued. “The man who wears the shoe knows best that it pinches and where it pinches, even if the expert shoemaker is the best judge of how the trouble is to be remedied.”

Recent celebrations of Lippmann’s appeal to objectivity have ignored the need and tradition of a dialectic between Lippmann’s institutionalized public and Dewey’s conversation, not to mention ignoring Lippmann’s profoundly undemocratic later stances. Alterman’s description here provides a valuable historic lesson on these two seminal thinkers.

But I came away with the sense that Alterman doesn’t quite get how that dialectic between Lippmann and Dewey works. That’s partly because while Alterman admits that a more partisan press leads to a more engaged citizenry…

The transformation of newspapers from enterprises devoted to objective reporting to a cluster of communities, each engaged in its own kind of “news”––and each with its own set of “truths” upon which to base debate and discussion––will mean the loss of a single national narrative and agreed-upon set of “facts” by which to conduct our politics. News will become increasingly “red” or “blue.” This is not utterly new. Before Adolph Ochs took over the Times, in 1896, and issued his famous “without fear or favor” declaration, the American scene was dominated by brazenly partisan newspapers. And the news cultures of many European nations long ago embraced the notion of competing narratives for different political communities, with individual newspapers reflecting the views of each faction. It may not be entirely coincidental that these nations enjoy a level of political engagement that dwarfs that of the United States.

…He simply doesn’t consider the tremendous importance of such a development. I’ve had great journalists dismiss the notion that if journalism doesn’t result in an engaged citizenry, it has failed in an important respect. While Alterman doesn’t go that far, his silence on the importance of heightened political engagement is telling. 

Alterman also betrays an insufficient understanding of a Deweyan conversation when he labels the mono-vocal rants of an O’Reilly or a Limbaugh as the first blossoming of Dewey’s conversations.

The rise of what has come to be known as the conservative “counter-establishment” and, later, of media phenomena such as Rush Limbaugh, on talk radio, and Bill O’Reilly, on cable television, can be viewed in terms of a Deweyan community attempting to seize the reins of democratic authority and information from a Lippmann-like élite.

Limbaugh may welcome callers to his show, but he’ll cut the mike of anyone who dares disagree with him–or even deviate from Limbaugh’s chosen narrative. And to suggest the corporate funded conservative media–complete with its designated elites at the Weekly Standard and well-funded think tanks–does not follow Lippmann’s model of manufacturing and managing public opinion rather than conversing with it ignores the entire structure and history of the conservative media. 

But the point where I got really exasperated with Alterman’s depiction of the blogosphere came when he claimed there was no match for Dana Priest in the blogosphere.

It is hard to name any bloggers who can match the professional expertise, and the reporting, of, for example, the Post ’s Barton Gellman and Dana Priest, or the Times’ Dexter Filkins and Alissa Rubin.

Don’t get me wrong–I think Dana Priest is by far one of the best reporters out there; she contributes both deep expertise and a real ethic of journalism to produce important work. [Incidentally, Dexter Filkins? Couldn’t Alterman come up with a better example of a superlative NYT journalist?] But it just so happens I’ve been struggling to get a grasp on the Basra offensive since I’ve come back from vacation, and so turned immediately to Colonel Pat Lang to read what he had to say. And though Lang usually engages in the kind of "parasitic" blogging Alterman describes (riffing on press accounts rather than doing original journalism), and though Lang’s acerbic commentary lacks all of Priest’s balance and moderation, I’d pit Lang’s expertise–knowledge of the military and intelligence–against Priest’s any day. Oh–and he reads Arabic, which is a pretty big plus. And Lang is just one of the many experts who inhabit the blogosphere, participating firsthand in a conversation with citizens, explaining to those wearing the ill-fitting shoes why their feet hurt.

Similarly, Alterman mourns traditional reporting on the effect of violence on Kenya’s middle class, but fails to note that some of the best reporting from crisis areas–most recently, Myanmar and Tibet–has come from ordinary people posting to blogs. 

Obviously, what Dana Priest does is very different from what Pat Lang does. But in the absence of voices like Lang’s engaging in unmediated conversation with real citizens, in a world where David Broder is seriously labeled as the Dean of anything worthwhile (as Alterman does), our country has gone badly and dangerously wrong. It makes no sense to mourn the financial demise of dead tree newspapers without recognizing that, without an engaged citizenry, Dana Priest’s best reporting might drop silently from the nation’s consciousness.

We need both a viable press and an engaged citizenry. And for all the woes of the newspaper business, I think our citizenry remains the more fragile institution. 

The folks that read and participate at Emptywheel are, in my humble opinion, without any question the best anywhere at deconstructing email issues and cases, and it sure looks to me like some of the people litigating these various matters are picking up on that too. That being the case, who could possibly deny you more fodder?

The Democratic National Committee has been suing the DOJ in DC District Court to obtain some 68 pages of emails relaing to the US Attorney purge. The main reporting to date has been from Politico:

A federal judge has handed the White House a legal victory in a battle with the Democratic National Committee over e-mails related to U.S. attorney firings.

District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ruled Thursday that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.
…
In dismissing the DNC lawsuit, Huvelle ruled that it was "based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications."

Additionally, Huvelle decided that just because an RNC server was used to send the messages — 68 pages out of more than 5,000 which have been denied to the DNC — it is not enough to automatically disqualify the Justice Department from claiming a FOIA exemption in refusing to release them.

"It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications," Huvelle wrote in her opinion.

I think there are two issues to be contemplated here. The first is the relative propriety of Huvelle’s decision, and foundation therefor, in the DNC case, and the second is what implications it may have for the greater mass of contentious email issues that are percolating in our midst. Here is the full opinion rendered by Judge Huvelle in Democratic National Committee v. United States Department of Justice, CV 20070-712 (ESH-DDC).

There were originally 5,337 pages of emails responsive to the DNC’s FOIA request, but agreement was reached as to all but 68 pages. All of the e-mails at issue were sent between officials in the White House and the Department of Justice and were sent to or from an e-mail address with the domain name “GWB43.com” pertain to matters such as "responding to an upcoming Congressional hearing, formulating official responses to inquiries from outside the Executive Branch, suggesting a plan of action for the appointment of a U.S. Attorney or conferring on issues arising from such appointments, recommending revisions to documents, and pfor the hiring of new Department personnel." The sole basis for the DOJ production refusal was FOIA Exception Number 5, contained in 5 USC 552 (b)(5) which provides that the FOIA

does not apply to matters that are . . . inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .

The critical discussion by Judge Huville is, in condensed form, as follows:

First, plaintiff’s position is based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications. While plaintiff is correct that RNC e-mail accounts were originally “supposed” to be used exclusively for political communications (see Pl.’s Ex. 3 at 5), it is clear from plaintiff’s own exhibits that, in fact, this supposition did not become reality.
…
It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications.
…
Given this apparently flagrant violation of the Presidential Records Act, plaintiff contends the Court should not treat the requested e-mails as official presidential communications to which the presidential communications privilege applies under FOIA.
…
However, the administration’s violation of the Presidential Records Act is, as plaintiff acknowleges (id. 8), not before this Court, and it cannot serve as a basis for determining whether the government has properly invoked Exemption 5. Moreover, plaintiff fails to point to any case law that would indicate that the server where an e-mail is housed is relevant to its treatment under FOIA. Rather, under D.C. Circuit precedent, it is the content, not the form, of the communication that determines whether it is properly exempt under Exemption 5.
…
Therefore, because the form of the document does not factor into the analysis under FOIA, the Court cannot adopt a per se rule that any e-mails sent on the RNC servers are not covered by FOIA. In the absence of such a per se rule, the remainder of plaintiff’s argument collapses.

That is the Reader’s Digest synopsis, but the devil is always in the details, so if this really interests you, by all means, read the entire decision with footnotes. I think the first thing to keep in mind is that this decision was made strictly within the context of a FOIA request; the DNC would not have had standing in any other circumstance, so this is a pretty limited ruling and I don’t think anyone should get to exercised that it went south.

Notwithstanding the above, I have some issue with the way the decision blithely dispensed with the executive privilege element, which really was given short shrift. The court strains to make the claim that the DNC relies solely on the argument that the emails are reachable because they were on the RNC server; however, skips right over the impact that the fact that they were distributed to the independent third party and how that seriously undermines the executive deliberative process privilege claim. The White House knowingly and intentionally used this non-secure and violative means of communication, that distributed through non-involved parties; if they don’t act in any manner consistent with a privileged communication, how is this not a privilege buster? There are certainly arguments that might could be made to overcome the thought that this was a direct waiver of privilege, but it is pretty hard to understand how the Court, even on it’s own if necessary, didn’t address the clear prima facie appearance of a direct waiver. Bottom line, if it is viewed through the restricted lens the court set forth, this might be a correct decision; given the more detailed full view that should have occurred, not so much maybe.

Now for the more fun part of this exercise, namely what can we take away from the decision? I think there are several goodies in there that may be useful in various places of interest to us. First off, even Judge Huvelle can’t escape making the conclusion that the facts exhibit willful violations of the PRA and Hatch Act, notwithstanding her reticence in making such a formal determination because that was not issue before the court. Albeit it in dicta, there is a good deal that supports a lot of arguments and suppositions that have long been made in the discussions at Emptywheel and TNH. I believe Marcy, and many others will find the contents of Footnote 3 of the decision to be of interest.

Pustay has categorized the 68 contested pages into six numbered groups. Group 3 includes an e-mail from the White House to DOJ forwarding an e-mail about an impending Congressional hearing and soliciting assistance and an e-mail chain regarding an internal White House discussion about how to respond to an inquiry from the North Dakota Attorney General’s Office. Group 6 includes a set of e-mails from the White House to members of the Judicial Selection Committee (“JSC”) advising on dates, times, and locations of JSC meetings and listing the participants and portions of two e-mail communications discussing a proposed plan of action regarding nominations. Group 21 includes one e-mail chain between the White House and DOJ in which the correspondents discuss potential candidates for a United States Attorney position and develop a selection process. Group 25 includes portions of two e-mails chains discussing how to handle DOJ’s response to a controversy regarding the nomination of a United States Attorney and portions of one e-mail chain in which the response to a news article about the replacement of a U.S. Attorney is discussed. Group 26 consists of various e-mails regarding the impending appointment of United States Attorneys, including a discussion of hiring issues and background information on the candidates. Finally, Group 28 is comprised of portions of e-mail communications discussing the merits and logistics of hiring of a particular individual to work at DOJ.

Shew! I did it! I survived for a full week without WiFi or wireless.

And it was nice.

A million thanks to bmaz for watching the blog this week–looks like you guys had a lot of fun without me. And a million thanks for the birthday wishes.

I’ll post more substantively once I wade through the accumulated emails and posts and news. But for now I’ve got the following questions as I read through what you’ve guys have been reading through.

• If the White House destroys hard drives of people who move on, and the people from whom we wanted email in January 2006 included three people who had already left OVP (Cathie Martin, Jenny Mayfield, and Scooter Libby), then does that mean we still don’t have emails from the relevant period for these three people (particularly the last two)?
• If Brent Wilkes’ complaints about improper leaks of his impending indictment win him a get out of jail free card, does that mean Eliot Spitzer is out of all legal danger (even while the DA is making it known that he suspects Spitzer perjured himself)?
• What does Eric Lichtblau mean when he refers to Dick Cheney’s tense relations with the NYT in December 2005?

As New York Times Editor Bill Keller, Washington Bureau Chief Phil Taubman, and I awaited our meeting, we still weren’t sure who would make the pitch for the president. Dick Cheney had thought about coming to the meeting but figured his own tense relations with the newspaper might actually hinder the White House’s efforts to stop publication. (He was probably right.)

After all, this meeting took place just a month after Cheney’s Cheney had been indicted for lying to cover up Cheney’s apparent order to leak Valerie Wilson’s identity to Judy Miller. That indictment came after the NYT made an ill-advised attempt to protect Libby–even after they knew Judy’s testimony was proof that Libby lied under oath. After having been served so well by his selective A1 cutout leaks to the NYT, why was he so cranky right after Libby was indicted?

Almost like it was a Friday evening news or document dump coming out of the Bush White House, news has just hit the wires that convict Brent Wilkes has been released from prison pending appeal.

A federal appeals court has ordered the release from prison of former Poway defense contractor Brent Wilkes while he pursues an appeal of his bribery conviction and 12-year sentence.

The order from the 9th U.S. Circuit Court of Appeals was issued Thursday by judges Thomas G. Nelson and A. Wallace Tashima. Wilkes was convicted in November of bribing former Congressman Randy "Duke" Cunningham and sentenced three months later to 144 months in prison. He immediately appealed the conviction and sought to remain free, but U.S. District Judge Larry Burns refused and ordered him into custody.

In a brief order, Nelson and Tashima said it was unlikely that Wilkes poses a danger to the community or would flee if he were released.

Moreover, the judges said his appeal raised a "substantial question" of law or fact, that "is likely to result in reversal, an order for a new trial, or a sentence that does not include a term of imprisonment."

That was certainly fast; Wilkes was only sentenced about a month ago. Things sure work faster and better if you are a card carrying wingnut member of the Cheney/Bush criminal cabal as opposed to, say for instance, a Democratic governor in the Gooper infested South eh? Now, don’t get me wrong, I made the last statement somewhat tongue in cheek. I don’t think that the timeframe was necessarily accelerated as to Wilkes at all; however, anybody that now doesn’t understand how egregious and malicious the treatment of Don Siegelman was needs to give up the ghost, because any argument to the contrary just doesn’t fly. Are the judges in the 9th Circuit really nine times faster and better than those in the 11th Circuit? Or was something else going on? Go figure….

A couple of days ago, we discussed what really happened, and what the longer term implications might be, in the Bear Stearns forced sale/bailout over the March 15-16 weekend. There have been several things that have come out since then that are right on point with what we were all chewing on. Some are directly on point to the Bear deal, some are tangentially related and some are just general economic/financial news and thoughts. Masaccio wanted somewhere to jaw about things economic related; and what masaccio wants, masaccio gets. In no particular order then, here are some of the nuts I have stumbled on; please add any and all of your own in the comments.

1) This one I added as an update to the first post, but it still sticks in my craw a little bit. There simply is no such thing as a conflict of interest to the group currently running our country I guess (and when a Supreme Court Justice doesn’t feel obligated to be concerned over interest conflicts, why should anyone else I suppose). At any rate, turns out that JPMorgan Chase & Co head Jamie Dimon held a Federal Reserve board seat while Chase was in negotiations with the Federal Reserve over a deal to acquire Bear Stearns at an insanely low price. How convenient.

2) If there is any doubt about the fact that what is happening in relation to investment houses and the fear they sense from the financial struggles as to their continued ability to leverage and manipulate derivitive financial instruments, contemplate this:

Eight of the 10 largest donors so far to the U.S. presidential campaigns are Wall Street banks, led by Goldman Sachs, according to research Thursday from a political watchdog group. Goldman and its executives have pumped $1.7 million into the races, with 70 percent going to Democrats Barack Obama and Hillary Clinton, despite former CEO Henry Paulson’s present job as treasury secretary for the Republican Bush administration.
…
After Goldman, top-giving banks are Citigroup, Morgan Stanley, Lehman Brothers, Merrill Lynch and JPMorgan Chase, which is buying troubled rival Bear Stearns in a government-engineered bailout.

3) Remember my question as to whether this was all a one off deal or was setting up some type of revolutionary precedent? Arguably this is slightly different than the $30 billion guarantee in the Chase purchase, but still, the part where the Fed makes large loans to investment houses, sure looks like it is being set up by both parties to become the new norm:

Big Wall Street investment companies are taking advantage of the Federal Reserve’s unprecedented offer to secure emergency loans, the central bank reported Thursday.

Those firms averaged $32.9 billion in daily borrowing over the past week from the new lending facility, compared with $13.4 billion the previous week. The program, which began last Monday, is part of the Fed’s effort to aid the financial system.

On Wednesday alone, lending reached $37 billion.

The Fed, for the first time, agreed on March 16 to let big investment houses temporarily get emergency loans directly from the central bank. This mechanism, similar to one available for commercial banks for years, will continue for at least six months. It was the broadest use of the Fed’s lending authority since the 1930s.

4) I don’t know what the implications of this one are, but the long time chairman of Bear Stearns just liquidated his holdings in the company. Ouch.

Bear Stearns Cos. Chairman James Cayne on Thursday dumped his entire stake in the embattled investment bank for $61 million as it appears closer to a takeover by JPMorgan Chase & Co.

Cayne sold 5.66 million shares for exactly $10.84 a share on March 25, according to a filing with the Securities and Exchange Commission. His stake was once valued at about $1 billion when the stock was trading at $171.50 per share.

5) You know, none of the financial collapse mechanisms that got us to where we are today came about by chance, these were features of the economic system that has been purveyed by the Republicans, and most critically, the Bush Administration. They didn’t just put these mechanisms in place, they goaded and bullied people into using them in order to fuel their otherwise pathetic and hollow economic system and tax cuts. The next card to collapse in this house is home equity loans:

Americans owe a staggering $1.1 trillion on home equity loans — and banks are increasingly worried they may not get some of that money back.

To get it, many lenders are taking the extraordinary step of preventing some people from selling their homes or refinancing their mortgages unless they pay off all or part of their home equity loans first. In the past, when home prices were not falling, lenders did not resort to these measures.

Such tactics are impeding efforts by policy makers to help struggling homeowners get easier terms on their mortgages and stem the rising tide of foreclosures. But at a time when each day seems to bring more bad news for the financial industry, lenders defend the hard-nosed maneuvers as a way to keep their own losses from deepening.

6) The candidates have all made major economic speeches in the last few days. Obama is here. Clinton is here. McCain is here. As masaccio has pointed out, McCain is, of course, a blithering idiot. I will leave it to you all to discuss the rest. Again, this is NOT a forum for engaging in the battle of the candidates between Obama and Clinton. Don’t violate the spirit of EW’s rules she left us with; it would make her sad on her birthday!

Anything else you all have on the finance/economic front, have at it.

UPDATE: I knew this whole Bear Stearns, slam it through on the weekend, thing looked like like a craven power play of the entitled set, and that was really my question in the Sometimes You Eat The Bear, and Sometimes The Bear Eats You post. Guess what, I may (still even odds though) not be quite as stupid as I appear! This just hit the New York Times:

The Bush administration will propose on Monday that Congress give the Federal Reserve broad authority to oversee financial market stability, in effect allowing it to send SWAT teams into any corner of the industry or any institution that might pose a risk to the overall system.

The proposal is part of a sweeping blueprint to overhaul the country’s hodge-podge of regulatory agencies, which many specialists say failed to recognize rampant excesses in mortgage lending until after they triggered what is now the worst financial calamity in decades.

According to a summary provided by the administration, the plan would consolidate what is now an alphabet soup of banking and securities regulators into a trio of overseers responsible for everything from banks and brokerage firms to hedge funds and private equity firms.

While the plan could expose Wall Street investment banks and hedge funds to greater scrutiny, it avoids a call for tighter regulation. The plan would not rein in practices that have been implicated in the housing and mortgage meltdown, like packaging risky subprime loans into securities carrying AAA ratings.

Well, what do you know? They are not only not going to clamp down on derivitives and the other Enron like aspects that have caused this mess, they are going to consolidate regulatory agencies (read see to it that there are a lot less). Wonderful; do we get a huge corporate tax cut with that I suppose?

The Bush Administration and their never say die FISA/Immunity push are like cockroaches. You can’t kill em, and they never go away. Well, they’re back again. Attorney General Michael Mukasey has graduated from DC water carrier to full fledged traveling snake oil salesman for the Cheney/Bush Administration and their sordid attempts to cover their own criminal wrongdoing via retroactive immunity for telcos.

Last night, Mukasey spoke at the Commonwealth Club in San Francisco and got so emotional in his desperate plea for retroactive immunity and unlimited snooping that he he welled up with tears in the process.

… Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. … We’ve got three thousand people who went to work that day and didn’t come home to show for that," he said, struggling to maintain his composure.

Isn’t that special? Who from this Administration of criminals, fools and incompetents will cry for the Constitution that has been shredded? Who will lament the privacy of ordinary American citizens that has been lost? Who will shed a tear for the souls that have been tortured, beaten, extinguished and/or disappeared? That would be left to us I guess. There is no justice; just us.

Here, from the San Francisco Chronicle, are a few more highlights from Mukasey’s traveling minstrel show:

Attorney General Michael Mukasey defended the Bush administration’s wiretapping program Thursday to a San Francisco audience and suggested the Sept. 11 terrorist attacks could have been prevented if the government had been able to monitor an overseas phone call to the United States.
The government "shouldn’t need a warrant when somebody picks up a phone in Iraq and calls the United States," Mukasey said in a question-and-answer session after a speech to the Commonwealth Club
…
Mukasey also defended President Bush’s insistence on retroactive immunity for telecommunications companies that have cooperated with the administration’s surveillance program, in which phone calls and e-mails between U.S. citizens and foreign terrorist suspects were intercepted without warrants.
…
"They have cooperated," Mukasey said of the companies, without naming them. "It just ain’t fair to ask somebody to cooperate with the government" and face a lawsuit for substantial damages, he said.
If Congress denies the companies retroactive immunity, he said, the firms will withdraw their voluntary participation and the government will have to seek court orders, losing time and potentially valuable intelligence and risking exposure of secret information.
"We face the prospect of disclosure in open court of what they (the companies) did, which is to say the means and methods with which we collect foreign intelligence against foreign targets," Mukasey said.

Madness! Madness! Madness! Crikey, it does not matter one iota how much this stuff is completely debunked, they just trot it out with impunity again and again.

The reason I am posting this, other than as general informational courtesy, is that EW is not the only one that has been on vacation; so too has been the Congress and, as to the FISA/Immunity fight, all of us. The Cheney/Bush surrogates have, undoubtedly, not been on vacation and have been plying their wishes and snake oil to the blue dogs and others to set up their next legislative push. When you see Mukasey working the room in San Francisco, the home of EFF, the AT&T Folsom Facility, Pelosi, DiFi and the conservative perceived heart of the liberal base, you know the game is on. We need to saddle up and get ready as well; because next week is time to get back to work on slaying the twin headed FISA/Immunity beast.

ERRATA: I really struggled with the video clip selection here. I must be growing up or something because I put up the one that actually showed Mukasey at the Commonwealth Club in Frisco. However, the last 3/4 of this video is what I really wanted to put up instead. Seeing, feeling, touching and listening to you; thats what the Bushies want to do.