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Judy Miller Discovers the Word “Claim”

Judy Miller, first amendment martyr, has finally found an assertion that she distrusts enough to diminish by using the word “claim:”

NYPD’s critics have complained about potential invasions of privacy and disruptions of New Yorkers’ civil liberties. During the Occupy Wall Street protests, several reporters and citizens claimed to have been abused and arrested without justifiable cause. [my emphasis]

Now, to her credit, she also modified Ray Kelly’s assertion that those who have Occupied Wall Street are anarchists.

He defended the NYPD’s dismantlement of the Occupy Wall Street encampment at Zuccotti Park last fall and its handling of the protests that threatened to block vehicular and foot traffic on city streets. Handling such demonstrations, said Kelly, was “a contact sport.” “Sometimes we overreact,” he conceded. “We make mistakes.” But by and large, he concluded, the department had done a “good job” of enabling social protest while also protecting the city against violent disruptions caused by a minority of what he called “anarchists.” [my emphasis]

Not to get all Truth Vigilante on an esteemed journalist like Judy Miller, but these are both testable assertions. There are videos clearly showing journalists being pushed around and arrested even though they were properly credentialed. And any discussion of the treatment of journalists at Occupy Wall Street must go further, to talk about how journalists were managed to ensure they couldn’t cover certain things, and how more generally the NYPD refused to credential journalists so they could cover it. And while you’re at it, it might be nice to mention that regular people also were abused and arrested without justifiable cause, not just journalists.

But then you might also have to go further when challenging Kelly’s claims than simply scare-quoting them. In fact, in most cases, violent disruptions were caused by the NYPD, not protestors.

Though, I guess if Ray Kelly wants to call his force a bunch of anarchists, he would know.

Ten Years Ago, Anthrax Attacks–and Judy Miller–Had Huge Effect on Passage of Patriot Act

Ten years ago today, George W. Bush signed the Patriot Act into law. (US National Archives photo)

Ten years ago today, George W. Bush signed the Patriot Act into law in what many consider to be the single biggest blow to civil liberties our country has seen.  I will leave it to others to detail the damage done to our rights, but a quick list of that damage can be seen here on the History Commons website.  Instead, what I want to focus on is the prominent role played by the anthrax attacks in the passage of the Patriot Act.

Although most would say that the Patriot Act was a direct result of the 9/11 attacks, timeline analysis shows that key events in the anthrax attacks took place during the critical days leading up to passage of the act.  The timeline I have assembled here draws on data in timelines prepared by Marcy Wheeler, History Commons (anthrax), History Commons (Patriot Act) and Ed Lake, along with my own contributions.

September 4, 2001 Exactly one week before the 9/11 attacks, Judy Miller disclosed Project Bacus, in which the Defense Threat Reduction Agency demonstrated that they could construct a functional small bioweapons facility at the Dugway Proving Grounds in Utah for under $1 million.  The facility is capable of both growing and weaponizing biowarfare agents.

September 18, 2001 Letters containing anthrax mailed to the New York Post and Tom Brokaw were postmarked one week after the 9/11 attacks.  It is presumed that the letter that lead to the death of Robert Stevens of American Media in Boca Raton, Florida was also mailed around this time but the letter itself was never recovered.

September 30, 2001 Robert Stevens begins to feel ill. Read more

At About the Time He Subpoenaed Judy Miller, Patrick Fitzgerald Interviewed Cheney a SECOND Time

When I recover a bit more from having finished Dick Cheney’s infernal tome, I will have more to say about it.

But I wanted to point to this piece of news in it that no one has yet noted:

I participated in two lengthy sessions with the special counsel. The first was in my West Wing office in May 2004. The second was in Jackson Hole Wyoming, in August 2004. The second session was conducted under oath so that my testimony could be submitted to the grand jury.(408)

That is, Patrick Fitzgerald interviewed Cheney not just the one time we knew about–on May 8, 2004. But he also interviewed Cheney sometime during August 2004 (at least according to Cheney), apparently in anticipation of submitting that testimony to the grand jury.

The timing of this is pretty telling.

On August 12, 2004, Fitzgerald subpoenaed Judy Miller to testify. And on August 27, 2004, he wrote an affidavit justifying his subpoena, focusing closely on Scooter Libby’s claims that he had been ordered by Dick Cheney to leak material to Miller. And we know from Cheney’s first interview that he hung Libby out to dry, denying any knowledge of such things.

The Vice President does not recall any member of his staff, including Scooter Libby, meeting with New York Times reporter Judith Miller during the week of 7/7/03, just after publication of Joe Wilson’s editorial in the New York Times.

[snip]

The Vice President advised that no one ever told him of a desire to share key judgments of the NIE with a news reporter prior to the NIEs declassification on 7/18/03.

[snip]

The Vice President cannot specifically recall having a conversation with Scooter Libby during which Libby advised the Vice President that he wanted to share with the key judgments of the NIE with Judith Miller. Although if it did occur, he would have advised Libby only to use something if it was declassified. He believed Libby would have told him about any attempts to put something out to the media prior to its declassification and the Vice President cannot recall such a discussion.

When asked if he ever had a conversation with Scooter Libby wherein Libby informed the Vice President that certain material within the NIE needed to be declassified before it could be shared externally, Vice President Cheney advised he does not recall.

To a large degree, Cheney’s first answers–assuming they remained substantively the same in the second interview–necessitated Judy Miller’s testimony, since Libby had clear notes about being ordered to leak material to Miller that had been effectively hidden by his lies about Russert. Libby’s notes made it appear like he might have leaked Plame’s identity to Miller (which turned out to be the case). And Cheney’s refusal to claim he had authorized that leak put Libby at real risk of an IIPA indictment.

This interview raises a few more questions. First, in his first interview, Cheney did not release the journalists he had spoken with from their pledge of confidentiality. Bob Novak testified on September 14, 2004; though Fitzgerald’s affidavit makes it clear much of that discussion was about his conversation with Richard Armitage, Novak spoke with someone at OVP on July 7, 2003, so it has always been possible he was hiding a Cheney conversation.

In addition, Judy Miller explained away the “Aspens connected at the roots” comment by relating a chance encounter with Libby in Jackson Hole in August 2003 (not 2004). Though when I asked her if she had seen Cheney on that same trip, she did not answer. Is it possible the reference to Jackson Hole was a coded reference to Cheney?

Finally–and critically importantly–when CREW FOIAed this interview, they asked for “all transcripts, reports, notes and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame Wilson.” In other words, this second interview would have been squarely within the terms of their request. This interview should have been released under their FOIA, but was not.

This previously unreported Cheney interview would appear to go right to the heart of why Patrick Fitzgerald subpoenaed Judy Miller to find out whether Scooter Libby leaked Valerie Plame’s identity to her. And for some reason, it appears the Bush and Obama DOJ didn’t want us to read it.

WSJ: Don’t Be Mean to Us Like Fitz Was to Judy

Most sane people are outraged by the WSJ’s hacktalicious editorial calling for calm on the hack scandal.

As well they should: the editorial discredits WSJ as a paper.

But I was particularly interested in this bit.

In braying for politicians to take down Mr. Murdoch and News Corp., our media colleagues might also stop to ask about possible precedents. The political mob has been quick to call for a criminal probe into whether News Corp. executives violated the U.S. Foreign Corrupt Practices Act with payments to British security or government officials in return for information used in news stories. Attorney General Eric Holder quickly obliged last week, without so much as a fare-thee-well to the First Amendment.

The foreign-bribery law has historically been enforced against companies attempting to obtain or retain government business. But U.S. officials have been attempting to extend their enforcement to include any payments that have nothing to do with foreign government procurement. This includes a case against a company that paid Haitian customs officials to let its goods pass through its notoriously inefficient docks, and the drug company Schering-Plough for contributions to a charitable foundation in Poland.

Applying this standard to British tabloids could turn payments made as part of traditional news-gathering into criminal acts. The Wall Street Journal doesn’t pay sources for information, but the practice is common elsewhere in the press, including in the U.S.

The last time the liberal press demanded a media prosecutor, it was to probe the late conservative columnist Robert Novak in pursuit of White House aide Scooter Libby. But the effort soon engulfed a reporter for the New York Times, which had led the posse to hang Novak and his sources. Do our media brethren really want to invite Congress and prosecutors to regulate how journalists gather the news?

This is structured as an appeal to other media outlets, warning them that if they pile on, it might well hurt them too (this structure continues to the rest of the editorial).

This argument ends with the Scooter Libby argument–the claim that the NYT, because it purportedly “led the posse to hang [Bob] Novak and his sources” (including, among others, Dick Cheney and Scooter Libby), ended up getting embroiled in the Libby case (in spite of the fact that NYT discredited itself by protecting Libby for a year after they had published his name as Judy’s source).

Fair enough. The NYT–and especially Judy Miller–was exposed to be as hackish as Novak was (and, as another outlet who published bogus leaks in the Joe Wilson pushback, the WSJ) when its laundering of government leaks was made clear.

So the WSJ is rightly reminding other media outlets that they are as hackish as it is. Perhaps they have specific incidents of hackishness in mind?  Maybe the rest of the press should worry that a focus on how corrupt our press has gotten will reflect badly on them too. It appears, for example, that the WaPo is worried about just such a thing.

Then, oddly (working backwards from the Judy Miller issue), the WSJ warns that if other media outlets pile on, it’ll criminalize payments made in the course of news-gathering–with a claim that such a horror would only matter for British tabloids. Only, that’s not exactly true, is it? And that’s before you consider the number of “consultants” TV stations pay for their “expertise.”

Then, in the first part of this passage, the WSJ rails against what is probably one of its biggest worries–it’ll be held liable in the US for the fairly well-established bribery it engaged in in the UK (even assuming no such bribery were discovered here in the US). It suggests that a poor helpless media company would never bribe a government for something real–like a contract. Putting aside the appearance that Murdoch’s minions bribed the cops.

Except at the heart of this scandal is Murdoch’s attempt to get full control of BSkyB. Not to mention Murdoch’s fairly well-established pattern of trading political support for Tony Blair, Hillary Clinton, and David Cameron in exchange for political favors.

This is bribery every bit as much as Halliburton’s bribery to get Nigerian contracts was bribery. A satellite concession is every bit as tangible a goal as is a contract. But it attempts to couch decades of Murdoch’s ruthless business practices in First Amendment hand-wringing. It suggests that whatever meager journalism Murdoch’s minions do, it should excuse his illegal business practices.

This WSJ editorial is a damning exhibit in outright hackery.

But I suspect its audience–other hackish media outlets–finds it a persuasive read.

Update: With this editorial in mind, I wanted to point to a few paragraphs of Alan Rusbridger’s description of how the Guardian broke this story. A key part of it, he describes, was in partnering with the NYT to break the omertà among British papers.

Big story? Not at all. Not a single paper other than The Guardian noted [a $1 million settlement against News of the World for bullying] in their news pages the next day. There seemed to be some omertà principle at work that meant that not a single other national newspaper thought this could possibly be worth an inch of newsprint.

Life was getting a bit lonely at The Guardian. Nick Davies had been alerted that Brooks had told colleagues that the story was going to end with “Alan Rusbridger on his knees, begging for mercy.” “They would have destroyed us,” Davies said on a Guardian podcast last week. “If they could have done, they would have shut down The Guardian.

If the majority of Fleet Street was going to turn a blind eye, I thought I’d better try elsewhere to stop the story from dying on its feet, except in the incremental stories that Nick was still remorselessly producing for our own pages. I called Bill Keller at The New York Times. Within a few days, three Times reporters were sitting in a rather charmless Guardian meeting room as Davies did his best to coach them in the basics of the story that had taken him years to tease out of numerous reporters, lawyers, and police officers.

The Times reporters took their time—months of exceptional and painstaking work that established the truth of everything Nick had written—and broke new territory of their own. They coaxed one or two sources to go on the record. The story led to another halfhearted police inquiry that went nowhere. But the fact and solidity of the Times investigation gave courage to others. Broadcasters began dipping their toes in the story. One of the two victims began lawsuits. Vanity Fair weighed in. The Financial Times and The Independent chipped away in the background. A wider group of people began to believe that maybe, just maybe, there was something in this after all. [my emphasis]

News Corp would have destroyed the Guardian, Rusbridger and Nick Davies say, if they had had the dirt to do so. Such threats are presumably how News Corp enforced the omertà on the story.

Now look at the editorial. It appears, first of all, to be an appeal to precedent–a similar kind of appeal often made when pointing out that an espionage prosecution of Julian Assange will criminalize newsgathering.

It argues that a prosecution of News Corp under the FCPA would be a bad precedent, equating contracts with–well, I”m not sure what News Corp is admitting to here, as its media interests do amount to a contract. It then suggests–the logic is faulty–that such a prosecution would also criminalize the news gathering of those who pay for stories. This seems to be an implicit threat directed at those who do pay for stories (note that this editorial doesn’t say News Corp, including Fox TV, doesn’t pay for stories, just WSJ), perhaps an attempt to silence TV news.

But then, after having already impugned newspapers that, like the Guardian and NYT, gave “their moral imprimatur” to WikiLeaks, the editorial levels a threat clearly directed at the NYT, noting how the the newspaper’s purported efforts to go after Novak’s sources ended up backfiring on the NYT.

Not long after Rusbridger described the omertà that helped News Corp forestall consequences in the UK, Murdoch’s mouthpiece here in the US issued a veiled threat against the NYT.

I’m betting that Murdoch thinks the NYT will be easier to destroy than the Guardian.

Joe Lieberman Threatens to Put Dexter Filkins, Judy Miller in Jail to Fearmonger over Wikileaks

Joe Lieberman has introduced what he claims to be a law targeted at Wikileaks.

“The recent dissemination by Wikileaks of thousands of State Department cables and other documents is just the latest example of how our national security interests, the interests of our allies, and the safety of government employees and countless other individuals are jeopardized by the illegal release of classified and sensitive information,” said Lieberman in a written statement.

“This legislation will help hold people criminally accountable who endanger these sources of information that are vital to protecting our national security interests,” he continued.

The so-called SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination) would amend a section of the Espionage Act that already forbids publishing classified information on U.S. cryptographic secrets or overseas communications intelligence — i.e., wiretapping. The bill would extend that prohibition to information on HUMINT, human intelligence, making it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

Problem is, not only would it not endanger Wikileaks (as far as we know). But it would put both good journalists–like Dexter Filkins–and bad ones–like Judy Miller and Bob Novak–in jail.

As far as we know, Wikileaks has been successful in its dumps at hiding the identities of any intelligence sources. (It has exposed one of State Department’s moles in Germany, who has been fired. But a diplomatic source is not an intelligence source, is it?)

But other journalists do expose sources. Such as when Dexter Filkins reported on how much the CIA has been shoveling at Ahmed Wali Karzai. Or when Judy Judy Judy exposed the CIA ties of a Ahmed Chalabi rival. And then, of course, there’s that little matter of Bob Novak and Valerie Plame.

This is all getting really, really stupid. Doesn’t Joe Lieberman have anything better to do with his time? Like funnelling money to the TSA for some other invasive search machine? Or giving the uber-rich big tax breaks?

Dark Actors Playing Games with Iraq WMD Propaganda

The National Security Archive has been doing great work going back and collecting the documents leading to the Iraq War, adding some it acquired through FOIA. Its first installment provided new evidence of how quickly the Bush Administration turned to targeting Iraq both before and after 9/11. Its second installment looked at whether anyone had ever even considered alternatives to war. Both are worth reading closely.

But I’m particularly interested in the third installment, which they posted a couple of weeks ago. It traces the collaboration between the US and UK as they developed the propaganda used to generate support for the war. Notably, its list of previously and newly released documents shows intense cooperation as the US intelligence community was working on the NIE and white paper and the UK was working on its own white paper (which the Bush Administration would use to justify the 16 words in the State of the Union). For example, this document includes passages from emails commenting on drafts which may show the UK offering suggestions to the US.

By the evening of Friday, September 13, British officials had a copy of “the latest US Doc. Summary + nuclear section.” An email sent at 7:54 p.m. (Document 17) forwarded that document. Internal evidence identifies this as the draft of a CIA white paper, one more recent than the July version, making it at least the third iteration of the paper. An email reply the following Monday makes what appears to be a wording suggestion for the U.S. paper. Although this is a technical point, it demonstrates that the transatlantic exchanges on the respective drafts were a two-way process.

Among other things, the collection of these documents in one place strongly supports earlier suggestions that the final intelligence that went into the Niger claim came from Italy’s Nicolo Pollari at a meeting he had with Stephen Hadley on September 9, 2002 (just after the Bush Administration had introduced the Iraq War as its new September product). In addition, the collection adds more evidence refuting the Blair government’s claims that the propagandists weren’t leading the effort in their sexed up dossier.

But as I was reading it, all I could think of was David Kelly’s last email to Judy Miller, warning of dark actors playing games, followed shortly by Tony Blair’s apparently unplanned trip to the US, just in time for him to be out of the country when Kelly was suicided (not to mention for him to be here in the aftermath of the Plame outing which Dick Cheney had ordered Judy to be included in). After all, its hard to look at the timeline the NSA lays out without also thinking of Judy Miller’s key pieces of propaganda–boosting claims about the aluminum tubes–on September 8 and 13, 2002 (indeed, those articles appeared at the same time as the Brits were strengthening these claims, which makes me wonder whether her work wasn’t a key part of pushing the UK to make its claims about the tubes stronger).

We knew the Brits and the US built their propaganda for war together. We knew that Judy Miller was an integral part to that. But when we see the emails going back and forth commenting on each others drafts, it raises once again the question of where the emails back and forth to the war effort’s chief propagandist got disappeared to.

Woodward’s Secrets

Jeebus: Goldsmith may be getting a hang of this blogging thing, but I’m not: John Rizzo, not John Brennan. So the stuff I originally said about Brennan doesn’t make any sense.

I may not always agree with Jack Goldsmith, but he’s getting a hang of this blogging thing. Today, he posts the answer John Brennan gave him to the question of how Bob Woodward got very specific details of a meeting that a number of Obama’s top advisors had to leave because they didn’t have the appropriate clearance.

The first Chapter of Bob Woodward’s Obama’s Wars describes Barack Obama’s first post-election intelligence briefing from Director of National Intelligence Mike McConnell, on November 6, 2008.  The chapter shows McConnell, at the direction of President Bush, excluding many Obama aides (including Clinton Chief of Staff John Podesta and former Deputy National Security Advisor James Steinberg) from the briefing.  Because the briefing contained highly classified information about “sources and methods,” McConnell explained, only those “designated to take a top national security cabinet post” could attend.   Woodward then recounts this highly classified intelligence briefing in great detail, including several highly classified CIA and NSA programs, and their code names.

After reading this chapter, I wondered how a meeting involving classified information so sensitive that a close Obama aide and former top national security official could not attend could the following year be recounted in such loving detail in the first chapter of a best-selling book.  Woodward clearly got his information from participants in the meeting or their close aides.  Was it right for these people to speak to Woodward about these matters?  Was it legal?  I sent these questions to John Rizzo, the just-retired thirty-four year veteran CIA lawyer who has seen his share of leaked classified information over the years.

John responded:

Simple.  When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information.  That’s what is remarkable and unique about Woodward’s standing.

Now, Goldsmith appears offended that Obama and Bush would treat classified information so lightly.

Me, I’m more interested in what this says about Woodward’s (and, while we’re talking about it, Judy Miller’s) position in the information management function.

John Brennan–a guy who oversaw targeting for Cheney’s illegal wiretap program and therefore presumably had the highest clearance in two Administrations–lackadaisically says that if the President wants something leaked, it becomes legal to leak it.

In Judy Miller’s case, we saw how this selective leaking ensured the Administration could declassify its politicized case for war, while ensuring those who disputed the case were kept silent under threat of prosecution.

Woodward is even more interesting. Woodward knew to ask certain pointed questions of Richard Armitage–the same questions, as it turns out, that Bob Novak asked to elicit information about Valerie Plame’s purported role in Joe Wilson’s trip to Niger. But according to John Brennan, at least, even if Richard Armitage leaked Plame’s role intentionally, it would not be illegal. And remember, too, that on July 8 or 9 (this is reflected in notes introduced at trial; you’ll have to take my word for it though, because I don’t have my records with me), the VP’s office did give Woodward detailed information about the Iraq NIE. In other words, we know Woodward was a part of the OVP’s strategy for rebutting Joe Wilson in what was effectively a political hit.

More generally, though, consider what this suggests about the excuse that Cheney was prepared to use for having ordered the leak of Plame’s identity. John Brennan, at least, argues that if the President “signals to his Administration” that he wants certain information out there, it’s legal to leak it. I don’t necessarily buy that, mind you.

But it suggests one of Obama’s key advisors buys off on the idea that it’s cool for the President to selectively declassify information (you know, like leaks to the press about targeting Anwar al-Awlaki, even if you later invoke state secrets about it) for political gain.

Cheney’s “Hard, Hard Power” and Syria

Apparently, the Poodle’s memoir (the tour for which got a little messy in Dublin) confirms something that was blatantly obvious: Dick Cheney wanted to conquer the entire Middle East, country by country.

Describing the former US vice president as an advocate of “hard, hard power”, Mr Blair said Damascus was next on Mr Cheney’s hit list.

“He would have worked through the whole lot, Iraq, Syria, Iran, dealing with all their surrogates in the course of it – Hizbollah, Hamas, etc,” Mr Blair wrote in his autobiography, A Journey. “In other words, he thought the whole world had to be made anew, and that after September 11, it had to be done by force and with urgency.”

As this report notes, Cheney’s transparent desire to take out Syria led that country to do things–like offer a haven for Iraqi insurgents–that hurt our overall war effort in Iraq. More importantly, Sy Hersh wrote extensively about how targeting Syria deprived the US of one of its best sources of information on al Qaeda.

State Department officials have told me that by early 2002 Syria had emerged as one of the C.I.A.’s most effective intelligence allies in the fight against Al Qaeda, providing an outpouring of information that came to an end only with the invasion of Iraq.

[snip]

… after September 11th the Syrian leader, Bashar Assad, initiated the delivery of Syrian intelligence to the United States. The Syrians had compiled hundreds of files on Al Qaeda, including dossiers on the men who participated—and others who wanted to participate—in the September 11th attacks. Syria also penetrated Al Qaeda cells throughout the Middle East and in Arab exile communities throughout Europe. That data began flowing to C.I.A. and F.B.I. operatives.

[snip]

Syria also provided the United States with intelligence about future Al Qaeda plans. In one instance, the Syrians learned that Al Qaeda had penetrated the security services of Bahrain and had arranged for a glider loaded with explosives to be flown into a building at the U.S. Navy’s 5th Fleet headquarters there. Flynt Leverett, a former C.I.A. analyst who served until early this year on the National Security Council and is now a fellow at the Saban Center at the Brookings Institution, told me that Syria’s help “let us thwart an operation that, if carried out, would have killed a lot of Americans.” The Syrians also helped the United States avert a suspected plot against an American target in Ottawa.

[snip]

“Up through January of 2003, the coöperation was topnotch,” a former State Department official said. “Then we were going to do Iraq, and some people in the Administration got heavy- handed. They wanted Syria to get involved in operational stuff having nothing to do with Al Qaeda and everything to do with Iraq. It was something Washington wanted from the Syrians, and they didn’t want to do it.”

But what I’m most interested in, particularly given the way that–as David Corn shows–Blair selectively edited out the parts of history that show the US was prepared to provoke an excuse to go to war against Iraq, is what it says about the intelligence we were trumping up about Syria. You know? Claims made by the now Director of National Intelligence that Iraq had moved its WMD program into Syria? Or the A1 cutout leak of John Bolton’s bogus testimony to Judy Miller to pre-empt intelligence community disagreements with it?

Granted, we really have known this all along: the Cheney government was inventing intelligence to justify a war not only against Iraq, but against much of the Middle East.

But as we piece together the evidence as new sources become available, this serves as a reminder that it’s not just about Iraq and Iran.

Judy Miller’s Editor Calls on Journalists to Expose False Journalism

Tim F made this point implicitly, but it deserves to be made explicitly. Do you really think Howell Raines, the editor who oversaw Judy Miller’s Iraq War propaganda, is really the one to exhort journalists to call out Fox for its false journalism?

One question has tugged at my professional conscience throughout the year-long congressional debate over health-care reform, and it has nothing to do with the public option, portability or medical malpractice. It is this: Why haven’t America’s old-school news organizations blown the whistle on Roger Ailes, chief of Fox News, for using the network to conduct a propaganda campaign against the Obama administration — a campaign without precedent in our modern political history?

[snip]

Why has our profession, through its general silence — or only spasmodic protest — helped Fox legitimize a style of journalism that is dishonest in its intellectual process, untrustworthy in its conclusions and biased in its gestalt?

[snip]

Why can’t American journalists steeped in the traditional values of their profession be loud and candid about the fact that Murdoch does not belong to our team?

[snip]

As for Fox News, lots of people who know better are keeping quiet about what to call it. Its news operation can, in fact, be called many things, but reporters of my generation, with memories and keyboards, dare not call it journalism.

I’ll admit that when I first suggested that Judy Miller was not engaging in journalism when Dick Cheney and Scooter Libby outed Valerie Plame to her, I wished that other journalists would have the courage to acknowledge that what she was doing was not journalism. It would have been nice, then, to have a column like this, calling on journalists to expose disinformation in the guise of journalism.

But really. Does Howell Raines have no sense of irony?

After all, it’d be a pity if Raines missed the irony of the fact that Judy Miller now works for Fox News.

A Dick Cheney Torture Trifecta!

First we have Judy "re-connected at the roots" Miller claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

Then we got Stephen "Hagiographer" Hayes, claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

And now we’ve got Victoria Toensing, claiming we shouldn’t prosecute John Yoo and Jay Bybee because they told Dick Cheney he could torture. This article is notably bad, even for Toensing. She invokes her Reagan-era legal experience as her basis of authority–but ignores the Reagan-era case which declared waterboarding to be torture.

In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard:

She claims the lawyers (she conveniently mentions just Yoo and Bybee, for obvious reasons) only had to determine whether waterboarding constitued a specific intent to torture, and not whether it shocked the conscience.

Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law’s definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.

Bradbury, of course, spent a good part of his May 30, 2005 memo addressing the "shock the consicence" standard, because the program had been deemed illegal by the CIA’s own IG under that standard.

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