Saturday, March 31, 2007

What’s a 100 million dollars between friends?

It is Saturday, my people’s Sabbath, and so you might think I would take a break from publicizing Republican scandals. No can do. They keep coming, and if I take time off, I just fall too far behind.

So here’s your Shabbat parsha … *

As we all know, the Republicans snuck an unnoticed provision into the USA Patriot Act that enabled them to appoint U.S. Attorneys without Senate confirmation. One of the beneficiaries of that act was a certain Rove protégé named Tim Griffin. His previous claim to fame was that he engaged in what appears to be a felonious plot to suppress the African-American vote in Arkansas. See, Had your fill of Republican scandals? Here’s another for you..

Well here’s yet another.

U.S. Attorney Jeffrey A. Taylor was appointed directly by Attorney General Gonzales without Senate confirmation when D.C.’s U.S. Attorney, Kenneth Wainstein, was promoted to assistant attorney general for national security. Prior to that Taylor worked as counsel to Attorney Generals Aschcroft and Gonzales for four years. And before that he worked as an aide to Senator Orrin Hatch.

Last Wednesday a judge ruled that in the largest tax prosecution ever, the treasury can’t recoup at least $100 million in restitution. Why not? According to U.S. District Judge Paul Friedman the binding plea agreement listed the wrong statute and failed to include any discussion of probation as is routine in such deals.

This is being described as a blunder. The Judge said, “I’ve come to the conclusion, very reluctantly, that I have no authority to order restitution. . . . This is a very poorly drafted agreement.”

Am I the first person to wonder aloud if maybe this “mistake” was not completely an innocent one? I am just wondering. It wasn’t poorly drafted from Walter Anderson’s point of view, was it?

This same Jeffrey A. Taylor may have a huge role in the upcoming confrontation with Ms. Monica Goodling. She is expected to take the fifth, as she has promised to do in letters to the Senate leadership, and more recently to the House leadership, too. For reasons that I described here, her claim of privilege is bullshit. If a congressional committee decides that she ought to be prosecuted for contempt of congress, responsibility for that would rest on Mr. Taylor.

For that reason, Congress may want to consider alternative means of coercing her testimony. As we all know, there is the immunity route.

There’s also another route. Congress can direct the Sergeant at Arms to arrest her, and let her fight her way out of jail in court. They may not have covered that at Regent Law School.

“… and tell ’em Big Mitch sent ya!”

* Shabbat parsha literally means, Sabbath portion. It usually refers to the weekly portion of the 5 Books of Moses that is read during Sabbath services.

Thursday, March 29, 2007

Don't resign, Fredo! Stay on for the sake of the children!

On March 22nd El generalissimo Gonzales told a crowd in St. Louis Mo. that he's happy to be out of Washington - if just for a day. “I'm not going to resign. I'm going to stay focused on protecting our kids” Since then he has been traveling the country with Ernie Allen, president and CEO of the National Center for Missing & Exploited Children to promote a program called “Project Safe Childhood.”

Samuel Johnson said that “Patriotism is the last refuge of a scoundrel.” My experience teaches me that the real low-lifes will hide behind the need to protect children. Could this be el Generalissimo Gonzales’s game?

For two years a scandal has been swept under the rug in Texas. Hundreds of complaints of sexual abuse of children in the Texas juvenile justice system went unheeded. Texas Ranger Brian Burzynski made numerous attempts, beginning in early 2005, to get local, state and federal prosecutors to investigate allegations that teachers, administrators and guards had sex with minor male inmates.

Burzynski testified on March 8th to the Texas legislature’s Joint Committee on Operation and Management of the TYC. He complained that his investigation was stonewalled by everyone up the line, up to and including Alberto Gonzales. All refused to prosecute, he claimed, despite being presented evidence of sexual abuse at the Pyote school. At the conclusion of his testimony, Burzynski received a standing ovation from the joint committee and audience in the room. You can read more here. Fair warning: the reading about the abuse of children in the Texas Youth Commission is not for the faint of heart.

This can’t be good for el Generalissimo “Fredo” Gonzales.

“… and tell ’em Big Mitch sent ya!”

Is this being tape recorded?

Today, the Boston Globe reports on Senator Ted Kennedy’s accusations regarding the firing of 8 U.S. Attorneys:
At least two of the eight US attorneys fired by the administration refused to investigate spurious claims of voter fraud that were initiated by Republicans, Kennedy said. Two of the new US attorneys, meanwhile, had documented records of pursuing GOP goals, one as a Justice Department official and the other as a top aide to White House political adviser Karl Rove, he said.
Then there was U.S. Attorney Paul Charlton of Arizona. Just before he was fired, he opened an investigation of bribery and vote-selling involving Congressman Richard Renzi. Of course, this couldn’t have anything to do with his firing. We are told he was sacked because of a policy difference with the administration. But what was that policy difference?

William Moschella, Principal Associate Deputy Attorney General, told the House Judiciary Committee on March 6th that the Department of Justice has a policy against G-men tape recording the confessions of their suspects. Charlton disagreed.

One must wonder why this policy exists when it is becoming widely understood by police departments and others that taping and videotaping interrogations protects the officers from baseless accusations of unfair interrogation techniques, and protects suspects from being misquoted. It should not be overlooked that the practice also helps to uncover actual instances of unfair interrogation techniques.

For 22 years, it has been the law here in Alaska that the recording of a suspect’s interrogations in a place of detention is a reasonable and necessary safeguard, essential to adequate protection of accused’s right to counsel, right against self-incrimination and ultimately his or her right to a fair trial. State v. Stephan, 711 P.2d 1156 (Alaska 1985).

I suppose this helps explain why the White House is so adamant about there being no transcripts or recordings of Karl Rove and Harriet Miers’ testimony.

"... and tell ’em Big Mitch sent ya!"

Wednesday, March 28, 2007

Had your fill of Republican scandals? Here's another for you.

On Chris Matthews tonight, I heard a typical Republican mouthpiece (in this case, Katie O’Bierne) push the Party of Bush’s talking point: there was no crime committed in the firing of the eight U.S. Attorneys. As I have argued elsewhere, it is a crime to sack a U.S. Attorney in order to obstruct an investigation into corruption. But tonight, we find new evidence of an even more egregious crime.

First, the background. As you may recall, one of the stated purposes of firing some of the U.S. Attorneys was that they were not coming down hard enough on voter fraud. Problem is, as the New York Times pointed out, there is no voter fraud in the United States. Well, that is if you ignore Ann Coulter, and who wouldn’t want to do that?

Voter fraud is a code, understood by the Party of Bush loyalists, and it means voter suppression. And it is the next scandal.

One of the fired U.S. Attorneys is H.E. “Bud” Cummins of the Eastern District of Arkansas. He was sacked to make way for Rove protégé Tim Griffin. Tim Griffin’s main experience is reported to have been as an opposition researcher for the Republican National Committee. It turns out that there’s more.

On March 9, reported that Tim Griffin was the hidden hand behind a scheme to wipe out the voting rights of 70,000 citizens prior to the 2004 election, according to BBC Television. How did he accomplish this anti-democratic treachery?

It’s called “caging” and it works like this. The RNC sent first-class letters to new voters in minority precincts marked, “Do not forward.” Lists of vulnerable voters were discovered, and they had many sheets. Several of these sheets contained nothing but soldiers, other sheets, homeless shelters. Targets included the Jacksonville Naval Air Station in Florida and that city’s State Street Rescue Mission. Another target, Edward Waters College, a school for African-Americans.

If these voters were not currently at their home voting address, they were tagged as “suspect” and their registration wiped out or their ballot challenged and not counted. Of course, these ‘cages’ captured thousands of students, the homeless and those in the military though they are legitimate voters.

The Voting Rights Act of 1965 makes it a felony to challenge voters en masse where race is an element in the targeting. Why am I not surprised that a Rove protégé is a criminal operative?

My favorite part of the story, by the way, is how it came to light. BBC Television reports “Griffin made a wee mistake. Instead of sending the emails — potential evidence of a crime — to email addresses ending with the domain name “” he sent them to “@GeorgeWBush.ORG.” A website run by prankster John Wooden who owns “” When Wooden got the treasure trove of Rove-ian ravings, he sent them to us.”

The White House picked a felon to be a U.S. Attorney, and a he’s bumbler, too. Is it any wonder that he doesn’t want to have to stand for confirmation in the Senate?

“… and tell ’em Big Mitch sent ya!”

Support the Troops. It's not just a good idea. It's the law.

We read on the Huffington Post that Speaker of the House Nancy Pelosi urged the President to “Calm down with the threats, there’s a new Congress in town.” She went on to say, “We respect your constitutional role, we want you to respect ours.”

Nice, as far as it goes, but it doesn’t go far enough. It’s time for the House Democrats to start issuing some threats of their own. Try this one on for size. If Dumb Dubya vetoes the emergency funding bill, Congress will not pass another.

Don’t feel threatened yet, Dubya? Ponder this: Article 1, Section 8 of the Constitution of the United States confers on Congress the following powers, inter alia,

  • To raise and support Armies …
  • To provide and maintain a Navy

  • When Congress passes legislation to raise and support Armies and to maintain a Navy, it is a bit of a dereliction of duty to not actually support the Army or maintain the Navy.

    What to do with a President who is derelict in his duties? Coincidentally, the Constitution of the United States has something to say on that subject, too. See, Article II, Section 4:
    The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
    So, Dubya – do you think the Dems are bluffing? Well, that’s another coincidence, because Big Mitch thinks you are bluffing, too.

    “… and tell ’em Big Mitch sent ya!”

    Monday, March 26, 2007

    Jack Abramoff is this generation's Alexander Butterfield.

    Remember July 16, 1973 when Alexander Butterfield revealed to the Senate Watergate committee that there was a secret taping system in the White House? It was the beginning of the end of a tyrannical Republican imperial presidency. What made me think of that?

    Skip forward to today. Across the pond, The Financial Times of London is reporting that the congressional investigation into the firing of eight US attorneys has revealed an e-mail exchange in which J. Scott Jennings, the special assistant to the president and deputy director of public affairs, used an RNC e-mail account to communicate with Kyle Sampson, the former chief of staff to Attorney General Alberto Gonzales who is due to testify about the firing on Thursday.

    It turns out that the Abramoff investigation revealed a pattern of using Republican National Committee email accounts to avoid getting evidence on the White House server.

    Now that they have been busted, Henry Waxman has notified the RNC not to destroy any evidence or face the possibility of an obstruction of justice investigation.

    This is going to get interesting.

    “… and tell ’em Big Mitch sent ya!”

    It is my privilege to announce …

    The Huffington Post is reporting,
    Attorney General Alberto Gonzales’ liaison with the White House will refuse to answer questions at upcoming Senate hearings about the firings of eight U.S. attorneys, citing her Fifth Amendment protection against self-incrimination, her lawyer says.
    The top aide is Ms. Monica Goodling, counsel to el Generalissimo Gonzo. Asserting the fifth amendment privilege is not an admission of guilt. No inference of guilt should arise from the assertion of the privilege. Yeah, sure.

    Here’s what we know so far: her attorneys have spoken her. What they said is, of course, confidential. "I have decided to follow by lawyer's advice and respectfully invoke my constitutional right," she said in a statement to the Senate Judiciary Committee.

    Wait a second! Did she just waive her confidentiality by revealing the substance of her conversation with her attorney? I am just asking.

    Anyway, we do know that at the conclusion of that conversation, the attorneys had a well-founded fear of prosecution. This is a prerequisite to the assertion of the privilege. When you take the fifth, you are saying something much more than, “No thanks, I would rather not testify.” You are saying that if you get on the stand, take an oath, and tell the truth, you might just get your tit in a wringer.

    Her lawyer invoked the case of Scooter Libby in support of the argument that even innocent people can get caught up in a prosecution for perjury. This strange assertion was re-iterated on Hardball by John Yoo, a former Deputy Asst. Attorney General, who apparently is now paying the mortgage by shilling for the Party of Bush.

    What these worthies seem to have forgotten is that Scooter Libby had a dream team defense and still managed to get convicted of perjury and obstruction of justice beyond a reasonable doubt. Strange, to say the least, that Ms. Goodling would like to be lumped with that convicted felon.

    Of course, what she would seem to be trying to suggest is that if she tells the truth, the politically motivated powers that be might still prosecute her. Interestingly, this argument was explicitly rejected in the case of United States v. Susan McDougal. Yes, that Susan McDougal, who refused to testify at a Ken Starr chamber proceeding in relation to the Whitewater non-scandal.

    In holding that Ms. McDougal had no fifth amendment privilege, the court noted that the order compelling her to testify provided:
    That no testimony or other information compelled under this order (or any information directly or indirectly derived from such testimony or other information) may be used against SUSAN H. McDOUGAL in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with this order.
    Hey, let’s give Ms. Goodling use immunity for her testimony! That would take away her privilege against self-incrimination.

    Of course, before we do that, we might want to know what is it for which she has a well-founded fear of prosecution. Since Ms. Goodling has decided to talk about the advice her attorney gave her, I wonder if she would answer just a few questions about that advice.

    As I explained in The Pleasure of the President there are two different categories of crimes that might have been committed. First, there’s the whole misleading Congress thing. It’s serious, and it’s not something that Congress likes to overlook. But it is also a little tenuous. Let’s not forget that Goodling didn’t testify in Congress. Sure, as I pointed out, Kyle Sampson may be on the hook because his failure to prevent Deputy Attorney General Paul McNulty from misleading Congress. But I am not feeling Ms. Goodling had a role to play in McNulty’s testimony before Congress. Tell me if I am wrong.

    The other category of crime that might have been committed in connection with the firing of eight U.S. Attorneys has to do with anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations. Obstruction of Justice is a crime under 18 U.S.C. § 1512 (c).

    You know, the funny thing is that if Ms. Goodling’s attorneys have a well-founded fear of prosecution for obstruction of justice, then you just got to think someone else ought to be equally fearful. This crime, if it was committed, wasn’t committed by Ms. Goodling acting alone.

    So, Ms. Goodling, tell us. What are you afraid of?

    “… and tell ’em Big Mitch sent ya!”

    Sunday, March 25, 2007

    I told you so.

    (What follows is an essay I wrote on the eve of the invasion of Iraq. Sad to say, much of what I predicted has come to pass.)

    It’s War.
    By Mitchel J. Schapira

    War is Hell. America is poised at the brink of waging a huge war. There are over a quarter million troops in what almost certainly will be the Iraqi theater of operations. Though we are assured that the military will take every care to avoid civilian casualties, it is inconceivable that this war, if it comes, will not kill thousands of innocent civilians. It is reasonable to think that 100,000 Iraqi civilians will perish, and given the demographics of Iraq half can be expected to be under the age of 16 years old.

    The war aims being what they are, the war will surely involve urban warfare. That means that Americans must be prepared to take casualties. It is no figure of speech to say that the decision to wage war is a life and death decision, and on a large scale, too.

    Having said all that, I am not a pacifist. War is hell, to be sure, but it is not something which I oppose in all circumstances. The horrors of war, being almost incomprehensible, impose upon us a duty to seek peace whenever we can. I believe in a loving God Who calls upon us to love all of His children. This is my perspective as a citizen of the world.

    But I am not just a citizen of the world. I am an American. My loyalty to America, my love of country, and if I may say it without sounding sappy, my patriotism inform all of my decisions. The problem is that it is hard to say what is in America’s interests.

    When brave Americans sign up for military service, they say in effect that they are willing to lay down their lives for our country. Such love cannot be abused. We must be sure of our purposes and our prospects for success, if we are to ask these valiant men and women to risk, and in some cases, to sacrifice their lives.

    One need not catalogue the horrors of war to make the case against it. But it should be observed that it is not just loss of life and limb that we wish to avoid. The costs of this war will be stupendous and estimates that factor in the reconstruction reach $200 Billion. That’s real money but my bet is that the $2x10 to the 11th is a gross underestimate. So in addition to the direct human costs, we must figure in the suffering that this money could have alleviated at home and elsewhere.

    Fifty million people around the world are going to die from AIDS in a matter of days or months or at the most a few years unless they are treated immediately with the life-saving drugs that are now available. $200,000,000,000 buys a lot of medicine, or to put it more concretely, a lot of lives.

    War. What Is It Good For? Let’s examine the purposes of this war. First, the war is sold to us as a necessary component of the war on terror. This is an easy sell on the American people because the events of 9/11 have left us angry and scared. But fundamentally, the argument, as presented, is fallacious.

    Notwithstanding the fact that a shockingly high 40% of Americans think otherwise, there were no Iraqis among the 9/11 terrorists, and there is no evidence linking Saddam and Osama Bin Ladin. Indeed, Saddam’s secular (though totalitarian) state is anathema to Bin Ladin.

    Like so many aspects of this situation, the reality is more complex than the sound bites used to promote policy. It is undoubtedly true that Saddam Hussein gives money to the families of Palestinian suicide bombers. And Saddam’s closest ally in the Arab world is Syria, state sponsor of terrorist organizations such as Hizbollah and Hamas. So, though the arguments offered against Saddam relating to September 11th are false, the links between Saddam and terrorism are real.

    Let us assume there is a link between Saddam and terror besides the Israel connection. One question that needs to be answered is, “Will the war make us safer?” Intelligence services are widely reported to have warned that the war will make terrorist attacks more likely, increasing our risk rather than our safety.

    Is it the task of America to fight terrorism wherever and however it rears its ugly head? This goes to the big question of what is to be America’s role in the world. Should America be the policeman of the world? I don’t have much trouble answering that one in the negative. But America does have a special relationship to Israel, and support for Palestinian suicide/murder bombers is not just terrorism in the abstract. Rather, it is an act of war against our strategic ally. On balance, I am prepared to say that Saddam must go, and the sooner the better.

    Unfortunately, that doesn’t answer the question of whether or not America should go to war against Iraq. It is only logical to go from Saddam-must-go to we-must-invade if that is the only way or at least the best way to depose Saddam.

    Before we address that question, we must take note of the other justifications for the war. Saddam has been said to have a nuclear weapons program. The U.N. inspectors say otherwise. We can only say that the current regime of inspectors is keeping the Iraqi nuclear program at bay, and there is no reason to think that Saddam will threaten us anytime soon with nuclear weapons. Even the White House has dropped this line of argument.

    Saddam, we are told, possesses chemical and biological weapons of mass destruction. I believe it. We are told that Saddam is ruthless, and the inference is that he would threaten us with these weapons. On this, I am much more skeptical. Saddam may be ruthless, but he is not crazy. The costs of attacking America with chemical or biological weapons are just too high. Again, the inspectors impose a significant deterrent.

    Of course, we are told that Saddam has “gassed his own people.” Put aside the fact that the Kurds are not Saddam’s own people any more than are the Chasidim of Boro Park. What is especially irksome about this justification for war is that it was the United States that supplied targeting information for Saddam’s gas attack on Kurdistan. So if the argument is that Saddam is evil and therefore we should attack him, what does that say about his collaborators? Are they not evil, too? Shall they lead us into this war? Their names by the way are Rumsfield, Wolfowitz, Perle, and Powell.

    And then there is the problem of the United Nations which illustrates the complexity of this debate. One could argue that the United Nations serves American interests in many ways, not least of which is by reducing the scourge of war. Should we wage war against Iraq to establish the principle that the previous U.N. resolutions calling for Iraqi disarmament under threat of severe consequences must be obeyed? Or does proceeding to war without Security Council approval marginalize and thereby weaken the U.N.?

    And what if it does? After all, we are talking about a Security Council which includes Syria, a state sponsor of terrorism. The United Nations does much which is good, some which is bad and a lot which is irrelevant. The posturing of Security Council members doesn’t impress me one way or the other, especially when one considers that France has a veto. France, it must be recalled, sold Iraq nuclear reactors, apparently under the impression that Iraq faced an impending shortage of fossil fuel. According to Bill Safire, France sold Iraq five tons of rocket fuel in violation of the U.N. Sanctions as recently as last April. So whether the war is good or bad for the U.N. is, simply put, not a worthy consideration here.

    Don’t Worry; Be Happy The war will pit the American military against a regime that was to some degree disarmed 10 years ago, has little popular support, and has no realistic chance of military success. The American military might is awesome and overwhelming. Not to diminish the value of the lives that will be lost, it is reasonable to hope that within a short while, less than a month, the military objectives will be achieved, though not without costs.

    Then what? The suggestion has been made that Americans will be welcomed as liberators, and that democracy will blossom in the desert, from whence it will spread throughout the Arab lands. Don’t believe it.

    America has imposed a regime of sanctions on Iraq for a decade now, such that the 40% of Iraqis who are under the age of 14 cannot remember a time when clean drinking water, medicine and food were not limited by the sanctions. “UNICEF confirms that five to six thousand Iraqi children are dying unnecessarily every month due to the impact of sanctions, and that figure is probably modest,” Denis Halliday told a Congressional hearing in October 1998. Halliday, who had just resigned his post as U.N. Assistant Secretary General and head of the U.N. humanitarian mission in Iraq, spoke of the “tragic incompatibility of sanctions with the U.N. Charter and the convention on Human Rights.”

    Though the Saddam regime could have traded oil for food and medicine, or taken other affirmative steps to avoid sanctions, it is too much to expect that the average Iraqi sees Saddam’s government as the responsible party for his or her deprivation. It is much more reasonable to think that after an initial show of gratitude, the Iraqi’s will chafe at the presence of Americans in their country, and feel the sting of the war which was brought to them by the United States. In six weeks, whatever goodwill there was, will be gone.

    What will Iraq look like then? Here’s a worst case scenario provided by Mike Turner, a retired colonel and former policy planner for the Joint Chiefs of Staff on the Mideast and east Africa.
    Now we've firmly committed ourselves to war with Iraq, and what is our political objective? To get Saddam. The uniformed Joint Staff in the Pentagon strongly opposed this plan early on. It requires an attack with a force half that of Desert Storm against an entrenched urban enemy renowned for its ruthlessness in defending its own survival. The uniformed Joint Staff was overridden, yet in so many horrifying ways this operation resembles Somalia, not Desert Storm, only with nerve gas and biological weapons. And without Turkey as a base to launch a northern assault, a dual-pronged attack will be all but impossible.

    Perhaps we can pull this off, but here's a far worse scenario that's at least as likely. Within hours of our attack, Saddam launches Scuds on Israel. Israel's right-wing government launches a full-scale attack on Iraq, creating a holy war nightmare. Saddam, threatened with his own survival, uses chemical and biological weapons and human shields just as he has in the past. He torches his own oil fields, thousands of his own people are killed. Photos of American soldiers amid landscapes of Iraqi civilian bodies blanket the world press which aligns unanimously against the US. The US is condemned by NATO and the UN.

    The war ends within a few weeks, but the crisis deepens. The US is left to administer a political vacuum in Iraq. Iran is emboldened to help the Shiites in the south. Disease breaks out, food and water are contaminated and the cost of the war skyrockets. The US economy is dealt a body blow, but the administration can find no credible way out. Britain's Prime Minister Blair is voted out of office.

    Meanwhile, al-Qaeda, seeing an opportunity due to a shift in US focus, attacks a major US target. North Korea, emboldened by the distraction, ignores diplomatic efforts to restrain its development of nuclear weapons and begins to export weapons-grade plutonium to terrorists.

    These are not remote possibilities, but in my view reasonable, possibly even likely outcomes.
    Horrible as that scenario is, it doesn’t project what will happen to the Kurds in the northern part of Iraq. Past experience doesn’t supply the answer to that question, but it strongly suggests that whatever it will be, it will not be good.

    There is another cost to consider as well. How does one measure the cost of setting a dangerous precedent? In this case the precedent is pre-emptive invasion. If the case for going to war were a stronger one, I might be persuaded to bear this cost as well as the others. After all, I did publicly defend Israel’s pre-emptive strike at the Iraqi nuclear bomb factory. (But let’s not forget that the U.S. condemned it.)

    In the current situation, the arguments against war are fortified by the fact that this war can not be unequivocally viewed as a just, proportionate, response to an imminent threat, which left the U.S. with no alternative but to strike pre-emptively. Is this the case to establish the precedent of pre-emptive war? As the old lawyer’s saw has it, ‘Bad cases make bad law.’

    We are told that we should trust our government and that there is much information that if only we knew it, we would support the President. There are many lessons to take from the Viet Nam war, but surely the most important one is that blind trust goes beyond the duties of citizenship. Indeed, it crosses over the line into abdication of responsibility. The manner in which the debate has been conducted in this country convinces me more than ever that it is our duty to form our own opinions and express them if they are based upon careful thought and investigation. And though the opinions of other countries count for only so much, they are not to be ignored entirely.

    I can’t escape the conclusion that though the goals of ousting Saddam, and de-fanging Iraq are laudable, the risks of military invasion are not worth taking at this time. The costs in terms of life and treasure are too great. It’s a long-shot gamble at best and the stakes are too high.

    I have seen nothing in the record of the current administration that warrants confidence in their ability to pull off the difficult balancing act required. One need only look at the damage that has been done to American prestige, to the NATO alliance, and, on the domestic side, to the economy and the budget. The conclusion that can’t be dismissed out of hand is that the President just doesn’t know what he is doing.

    What to do? What to do? As I said, Saddam must go. I arrive at this conclusion on the strength of one argument, namely that he supports terrorism against Israel.

    Israel is a strategic ally, and therefore, American interests strongly align with Israel’s in this matter. Furthermore, by removing Iraq’s leader, America can say to Israel, “okay, your security is improved; now you must take steps toward peace with the Palestinians.” America can also say to the Palestinians, “okay, your supporter is gone. Make peace now, or it will only get worse.” Since it is axiomatic that resolution of the Israel-Palestinian conflict is in America’s interests, Saddam’s demise is welcome by America directly, as well as indirectly for its benefit to Israel.

    Two Problems. We have two problems to deal with. The first is the Iraqi situation. The second is the blundering president and the mess he has gotten us into.

    The first problem is actually much easier to deal with than it seems at first blush. As I have said, inspections seem to be working to some extent. That is to say, inspectors have prevented Saddam from getting a nuclear development program under way, and have inhibited him from arming missiles with chemical and biological WMDs. All this is good, as far as it goes, but it doesn’t go far enough. What we need, is to destroy the weapons of mass destruction that he is presumed to have.

    As long as America threatens unilateral military invasion, Saddam Hussein will do anything and everything to keep his weapons of mass destruction. This is especially true because Saddam reasonably believes that even if he were to destroy his weapons of mass destruction, America will invade and impose regime change. It is easy for Saddam to see that there is no percentage in him destroying his WMDs as long as America threatens unilateral action to depose him. Therefore, the United States must foreswear unilateral action, if there is to be any chance of success in disarming Iraq.

    In order to destroy the WMD’s we need a new regime of inspectors. The inspectors should be empowered not merely to report to the UN, but also to destroy weapons and components wherever they are found. By ‘empowered’ I mean to say, given legal authority and military capability. The legal authority would come from the Security Counsel, or the General Assembly of the United Nations. The military capability should wear the uniforms of the UN troops. There must be a true coalition of the willing involving the vast majority of nations willing to back up the Inspectors with invasion if Saddam fails to cooperate in any way. This back up force has to be a significant multi-national force, mobilized and able to strike on very short notice.

    What would trigger the multinational force? The plan I propose would necessarily involve a much more active inspector corps. They would be given provisional authority to order military strikes from a joint command. The implied bargain is this, “cooperate and live; fail to cooperate and you face the combined forces of the world’s free nations, which means certain death for you.”

    Of course, we have said that Saddam must go, and that regime change is devoutly to be wished for. We should be willing to settle for Saddam dying peacefully of old age, if he is restrained from doing evil for the rest of his life.

    I think that there is much that can be done to promote regime change from within Iraq. This goes beyond my expertise, but it seems obvious that America has supported the overthrow of tyrants before, and our intelligence services are capable of doing it again. It seems that we have made enough mistakes in the past that, were we disposed to learn from mistakes, we could be very wise, indeed. I might mention here that I am not a conscientious objector to Israel’s policy of targeted assassinations.

    The specifics of how we could bring about regime change are difficult to discuss. I would observe that the inspectors would impose limitations on Saddam’s ability to resist popular uprising, and could also hamper his capacity for making mischief abroad.

    If through the implementation of these measures Saddam is harmless until his time on earth comes to an end, I would count the policy as a great success. Of course, harmless means more than not employing WMDs. It also means not having the means by which to threaten peace. Therefore, the inspector regime should include specifically the ability to trace money and insure access of the Iraqi people to information. Transferring money to terrorists, or their families, is supporting terrorism, and that would be contrary to the commitments which Iraq would have to make. An attack on Radio Free Iraq, would be interpreted at an aggressive act, incompatible with a disarmed Iraq.

    A special consideration is the role of sanctions on Iraq. It should be sufficient to observe that 10 years of sanctions have weakened Saddam no more than 40 years of sanctions have weakened Castro. Indeed, sanctions seem to have strengthened the anti-American component of support for these dictators. Elsewhere herein, I have suggested that they have made any post-invasion scenario greatly more problematic. Therefore, I would reverse the sanctions. In their place I would impose a program of directly aiding groups within Iraq which are not friendly to Saddam.

    First and foremost among these is the Kurds. Since the Kurds live in Iraq’s northern no fly zone, it should not be an impossible task to give aid directly to them.

    The Shi’ites in the South should be naturally allied with the Saudis against the Baathists. Saudi Arabia should be persuaded to find a way to support their brethren to obtain democracy in a way that doesn’t threaten the House of Saud directly. I say directly because in the historical time scale, all democracies threaten all monarchies. Nevertheless, Saudi support for Iraqi Shi’ites is sufficient if it keeps Saddam hunkered down in Baghdad, and creates an environment in which the seeds of democracy can be sown.

    The other problem we have is that our President is a knucklehead and he has gotten us into a horrible mess. The solution to his incompetence is to vote against him in the next election, as most people did in the last. The solution to the horrible mess that he has gotten us into is to be guided by the words of the Good Book: “Pride goeth before a fall.” We must admit our mistakes, and not allow our nation to shed blood, lose treasure, and diminish our security to save face.

    “… and tell ’em Big Mitch sent ya!”

    Wednesday, March 21, 2007

    Welcome, Ike Ferguson.

    One of the most steadfast members of the Republican legal team is the little known Ike Ferguson. Today, Tony Snowjob revealed that he has lent his considerable talents to the White House.

    First some background: Back in the relatively innocent days of Watergate, tape recordings in the Oval Office revealed Nixon channeling Ike Ferguson’s advice to his co-conspirators when he told them how to tailor grand jury testimony. “You say, ‘I don’t remember.’ You can say, ‘I can’t recall. I can’t give an answer to that, that I can recall,’” said Nixon.

    Ike Ferguson’s clever hand was guiding the defense of notorious Republican supporter Ken Lay. Kenny-boy, as he was called by his buddy, Dumb Dubya, testified in his own trial, and said he didn't remember being told about any rules governing the use of loan money by banks to buy stock.
    I don't recall them ever coming to my attention we were not in compliance with any of those loan agreements. I can't categorically say somebody didn't, but I sure can't recall.
    Of course, it was not the first time that a corporate criminal took his cues from the indomitable Ike Ferguson.

    Dumb Dubya himself was in a tight spot when he dumped a bunch of Harken stock just before it announced an unexpected loss. This could have been a problem because Dumb Dubya was a director and member of the firm’s audit committee. Sounds like insider trading, doesn’t it?

    Well, as it happens there are laws about that, and one requires that an insider’s sales of stock has to be reported to the Securities and Exchange Commission. Bush didn’t do this until eight months after the required deadline, but as he explained, he didn’t know about Harken’s impending financial disaster, and he “simply forgot” to file the SEC reports.

    Ike Ferguson was an important architect of the Scooter Libby defense team. Back on May 27th, 2006, I reported “Scooter Libby claimed that his misstatements regarding conversations he had with Judy Miller, Joe Cooper and Tim Russert are the products of a faulty memory.” Actually, Scooter didn’t claim this in his trial, since committing perjury at your trial for perjury is just a bad idea. But his lawyers were clearly following Ike Ferguson’s playbook.

    Lo, these many years later, King George the Incompetent is still employing the services of Ike Ferguson. Today, March 21st, White House Press Secretary Tony Snow responded to questions about the politically motivated firing of U.S. Attorneys. Here’s what he had to say:
    The president has no recollection of this ever being raised with him.
    Maybe it’s time to reveal where this legal genius, Ike Ferguson came from.

    Many years ago, a young German Jew immigrated to this country. His family sent him off with very little material goods but with plenty of advice. When he came to Ellis Island, he became thoroughly baffled and confused by the noise and cacaphony of the main processing building. When at last he stood before the immigration officer's desk, hat in hand, the immigration officer barked at him: “Name?”

    The young man’s disorientation was so great that he could not recall even his own name. And so he replied, “Ich vergesse!” [fn. 1]

    The overworked immigration officer, unperturbed, says, “Right! Ike Ferguson! Next!” and waved the young man on...

    “… and tell ’em Big Mitch sent ya!”

    [fn. 1] For the Yiddishly challenged, “Ich vergesse!” means, “I forget!”

    Tuesday, March 20, 2007

    The Pleasure of the President

    Tomorrow the House Judiciary Committee, led by Chairman John Conyers, will vote in favor of subpoenaing Harriet Miers, Karl Rove, and the Alberto “Fredo” Gonzales. Thursday, the Senate Judiciary Committee will do the same under the leadership of Patrick Leahy. The White House can be expected to refuse to comply, claiming executive privilege.

    It’s ironic, n’est pas? The Bush administration has claimed all along that it disapproves of the Court’s making laws, and that the role of the judiciary is to strictly apply the letter of the Constitution. Executive Privilege is not to be found anywhere in the Constitution of the United States.

    But let’s take a moment to review what we know so far about executive privilege. There is not a lot of law on the subject, but clearly the leading case is United States vs. Nixon. That case arose in the context of the criminal case against John Mitchell, who was Nixon’s Attorney General. Mitchell was on trial for conspiracy to obstruct justice and other crimes relating to the break-in of the Democratic National Headquarters in the Washington’s Watergate complex. Nixon was an un-indicted co-conspirator.

    The prosecutor wanted access to recordings secretly made in the White House, and he prevailed upon the District Court to issue a subpoena. The President appeared through counsel, moved to quash the subpoena and lost. The case made it to the United States Supreme Court, which unanimously ruled against Nixon’s claim of executive privilege.

    Three observations are pertinent. First, the Nixon case clearly differentiates between military and diplomatic information in the possession of the executive branch and other information. Military and diplomatic information deserves special protection, but in the present controversy, the information sought does not merit this higher level of protection.

    Second, the Nixon case dealt with a fight ostensibly between the executive branch and the judicial branch. In contrast, the controversy today will test the will as well as the power of the legislative branch vis a vis the executive branch. In a sense, this may be a distinction without a difference.

    If Bush refuses to comply with the subpoena, Congress can hold him in contempt, and refer the case to the United States Attorney for indictment and prosecution. Assuming that he or she goes forward with the prosecution, the President will be in court, and the battle lines will be drawn between the courts and the executive.

    Third, and most importantly, the Nixon case concerned “a subpoena essential to enforcement of criminal statutes.” In contrast, over and over again, we have heard the apologists for this administration point to the fact that the United States Attorneys “serve at the pleasure of the President.” Indeed, though the present case raises serious questions about the independence of United States Attorneys, we are repeatedly told “no crimes were committed.”

    Let’s look a little closer.

    Suppose you had a small business, and you hired a secretary. After a bit, you decided that you didn’t want him or her to work for you anymore. You could fire the employee with impunity: you don’t need a reason. Likewise, if you discovered that your employees were stealing from you, you could fire them because, obviously, you have a good reason. The point is you can fire an employee for a good reason or for no reason.

    But now suppose you discovered that your secretary was married to a member of a minority group. If you decided to fire the employee for that reason you would be guilty of discrimination, and your conduct would be actionable. You can fire for a good reason, or for no reason, but not for a bad reason.

    Turning now to the facts of the present controversy, there is an appearance that the United States Attorneys were fired not for a good reason, and not for no reason. Rather, there is growing evidence that they were fired for bad reasons.

    As I reported back on January 17th
    Tonight, Keith Olbermann reported that the Bushies are in the process of purging 7 U.S. Attorneys and giving no public explanation. One of them, Carol Lam, is responsible for the Duke Cunningham conviction, and according to Dianne Feinstein, she has subpoenas out for other members of Congress. The concern is that the purge is payback for going after corruption. A purge of those who are not loyal to the Party of Bush – it’s just so typical of these fascists.
    Since then it has been learned that Ms. Lam's prosecution of Duke Cunningham was spreading to Republican Congressman Jerry Lewis of California. This provoked Mr. Kyle Sampson (Generalissimo Gonzales’ chief of staff) to write an e-mail message referring to the “real problem we have right now with Carol Lam.” He said it made him think that it was time to start looking for a replacement.

    In a New York Times article entitled, It Wasn’t Just a Bad Idea. It May Have Been Against the Law. Adam Cohen points out the criminal statutes that may have been violated.

    Start with 8 U.S.C. § 1505, which makes it illegal to lie to Congress, and also to “impede” it in getting information. That’s the statute that David Safavian went down on last year, and arguably it applies to the false statements of Deputy Attorney General Paul McNulty who indicated that the White House’s involvement in firing the United States attorneys was minimal. “If Kyle Sampson withheld the information about the White House’s role in the firings from Mr. McNulty, who then misled Congress, Mr. Sampson may have violated § 1505,” says Mr. Cohen. And let’s not forget that el Generalissimo Gonzales asserted to Congress that, “I would never, ever make a change in a United States attorney position for political reasons.”

    Then there’s 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations. David Iglesias, one of the fired United States attorneys says he “felt pressured” by a call from New Mexico Senator Pete Domenici who wanted a corruption case against a political opponent to occur before the election. Read his story here. Indeed, firing Carol Lam, if it was done to obstruct the investigation of Jerry Lewis sounds like obstruction of justice.

    Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested that if he kept speaking out there would be retaliation. There’s a name for that – witness tampering – and 18 U.S.C. § 1512 (b) makes it a crime.

    Advise to Democrats: It’s time to start calling a spade a spade. The investigation raises serious concerns that crimes were being countenanced, if not committed, in the White House. Advice to Republicans: be careful about trying to distinguish this case from United States v. Nixon on the basis that the Nixon case was a criminal case. That case, like the present controversy, involved obstruction of justice.

    “… and tell ’em Big Mitch sent ya!”

    Bedtime for Gonzo

    If there were any doubt that El Generalissimo Gonzalez is about to hit the bricks, it was removed today.

    King George the Incompetent called him at 7:15 a.m. We read here, “The president reaffirmed his strong backing of the attorney general and his support for him. The president called him to reaffirm his support,” according to White House deputy press secretary Dana Perino.

    Dumb Dubya might as well have painted a target on el Generalissimo’s forehead.

    But what to make of Perino’s categorical denial of the story that the Bushies are looking for a replacement for Alberto?

    To Big Mitch it can only mean one thing: the Bushies are looking for a replacement for Alberto. Hasta luego, Alberto.

    “… and tell ’em Big Mitch sent ya!”

    Sunday, March 18, 2007

    Wilson? Yeah! Fitz? Feh!

    I just got a chance to review the testimony of Valerie Wilson before the Waxman committee. What an excellent witness she was!

    The Party of Bush loyalists are still trying to get into the public discourse the idea that Mrs. Wilson was not a covert agent, but Mrs. Wilson and Henry Waxman drove a stake through the heart of that nonsense. But is that enough? The Party of Bush has a fall back position that also needs to be laid to rest.

    The idea is that Mrs. Wilson might have been covert but that the bastards that outed her did not know that. It’s time for a little refresher course in the law.

    It is a criminal offense to out a CIA covert agent. The statute is 50 U.S.C. 421. The elements of the offense are:

  • The perp had authorized access to classified information that identifies a covert agent,

  • He or she intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information,

  • knowing that the information disclosed identifies a covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States.

  • It’s too late in the day to argue that Rove, Libby and Cheney didn’t have access to classified information that identified Mrs. Wilson, or that Robert Novak was authorized to receive classified information. The question is, did the party of Bush’s hit men “intentionally” disclose the information.

    Intentionally is a word that seems to be brimming over with legal significance, and yet, it is quite simple. It means that the actor knew what he or she was doing. It is not intended to cover an act done through ignorance, mistake or accident. A person normally intends the natural consequences of his acts.

    Rove may say that he was talking in his sleep, or that it was a slip of the tongue. Or he might argue that he thought he was talking to Cheney when he called up Chris Matthews and said, “Valerie Plame is fair game.” If so, he has the balls of a blind burglar.

    On the other hand, if he admits that he knew that he was talking to someone not authorized to receive classified information, then he has ’fessed up.

    There’s another part to the statute: the perp has to “know” that the information disclosed identifies a covert agent, who is being actively protected by the government. So, you can well imagine these guys saying, “we had no idea she was under cover.”

    It’s a ludicrous argument, but certainly, not beneath the thugs in the service of King George the Incompetent. Here’s why it won’t work.

    A typical jury instruction in cases like this would say something like:
    When knowledge of the existence of a particular fact is an essential part of an offense, such knowledge may be established if the Defendant is aware of a high probability of its existence, unless the Defendant actually believes that it does not exist.
    Which one of these buffoons could say with a straight face that he actually believed that Valerie Wilson was not covert? Not one. The most they might say is that they had no idea, and didn’t really think about it.

    But were they aware that there was a high probability that she was a covert agent? Mrs. Wilson’s testimony on Friday laid it all out.

    First, remember that the Royal Stenographer, Judith Wilson has stated that Irve Wilson, (a/k/a “Scooter”) told her that Joseph Wilson's wife worked for the CIA in WINPAC (Weapons Intelligence, Non-Proliferation, and Arms Control).

    Mrs. Wilson confirmed that she was working in the Counter-Proliferation Division (CPD). What we know so far – and what Mrs. Wilson confirmed on Friday – was that almost everyone who works in the CPD was covert. In other words, it would be impossible to know that she worked in the CPD and not know that there was a “high probability” that she was covert.

    Next time you hear someone sing the praises of Fitz, the special prosecutor remember he didn't get the guys who ruined the career of the patriotic Mrs. Wilson, and he let the guilty guys wriggle off the hook.

    “… and tell ’em Big Mitch sent ya!”

    Friday, March 16, 2007

    Take a bromide

    Victoria Toensing testified at Henry Waxman’s committee today. What a piece of work is she! She appeared wearing two watches, which reminded me of the observation that a person with one watch knows what time it is, but a person with two watches is never quite sure. Still, it did kind of make her look like a spy.

    She testified that Mrs. Wilson was not a covert officer, which would surely come as a surprise to Mrs. Wilson who testified that she was. In fact, it must have come as a surprise to General Hayden, Director of Central Intelligence, who approved language used by Congressman Waxman, viz., “Valerie Plame was a covert officer.”

    How can Ms. Toensing come to that surprising conclusion? Quite simply. She redefines the terms “covert officer.” I won’t go into the details of how she does this because, frankly, it’s too arcane. But you will get the idea from a famous riddle that President Lincoln posed:
    Question: If you call a dog’s tail a leg, how many legs does a dog have?

    Answer: Four. Calling a tail a leg won’t make it so.
    To bolster her case that Mrs. Wilson was not a “covert officer within the meaning of the law” Ms. Toensing asked a series of rhetorical questions, such as, “Why didn’t the head of the CIA go to Novak, when he knew the article was forthcoming, and ask him not to publish it?” and “Why didn’t the CIA briefer who spoke to Cheney and Libby tell them that Plame was covert?”

    Whenever I hear someone use the rhetorical device of asking several questions in rapid fire, each containing untested assumptions, I am reminded of what my old man used to tell me: “A fool can ask more questions than a wise man can answer.”

    But over and above that, don’t forget the possibility that each one of Ms. Toensing’s rhetorical questions has a logical answer. For example, why didn’t the Director of Central Intelligence call Novak to put the kibosh on the outing of Plame? Answer: Novak had already been told by the CIA not to publish the article.

    In this case, Ms. Toensing’s questions threw enough baffle-dust into the air that you might come away with the conclusion that one can be a covert agent without being a “covert agent under the statute” covering unauthorized disclosure of a covert agent’s identity. But that doesn’t mean that Cheney, Libby, and Rove didn’t violate the relevant Executive Order relating to classified information. It’s clear that they did.

    Bad news for Republicans: Democrats have subpoena power. A Republican hack like Victoria Toensing is not going to slow them down one bit. Go for it Mr. Waxman.

    “… and tell ’em Big Mitch sent ya!”

    Thursday, March 15, 2007

    Breaking News: Generalissimo Gonzalez is a liar

    If someone in the Administration is responsible for misleading the Congress, you might think he should lose his job, at a minimum.

    If you caught Generalissimo Gonzalez’s press conference on Tuesday, you got quite an earful.

    The Attorney General took full responsibility for the fact that Congress was misled in the matter of the firing of the eight Assistant U.S. Attorneys. Of course, when Generalissimo Gonzalez says he takes full responsibility, he means, “I will not be held accountable, so let’s just stop talking about it.”

    But he didn’t stop talking about it. Instead, he went on to describe what happened.
    As a general matter, some two years ago, I was made aware that there was a request from the White House as to the possibility of replacing all the United States attorneys. That was immediately rejected by me. I felt that that was a bad idea and it was disruptive.

    I was not involved in seeing any memos, was not involved in any discussions about what was going on.
    He’s lying.

    First of all, you can tell just by the way he was speaking: he’s not as slick a liar as some of the more polished politicians in his party. His speech was pressured, and he looked acutely uncomfortable. It was way out of proportion to the main message that he was ostensibly delivering, namely, There’s nothing wrong, or even unusual about firing a few AUSAs. I had nothing to do with it. My underling may have misled Congress, and he has been fired.

    Some of the stress in his voice may have been related to the fact that the underling in question, Kyle Samson, is, Gonzalez told us, “still at the department, as he transitions out and looks for another employment.”

    I mean, how much shame and disrepute to you have to bring upon the Department of Justice before they say, “clean out your desk, and never darken our towels again.” If he is responsible for misleading Congress, he should be off the payroll and on the Criminal Docket, not drawing a paycheck while he looks for a job.

    A lot of folk would overlook a little fib about Kyle Samson because he was a trusted associate of el Generalissimo Gonzalez, who could be excused for spinning the truth. But what to make of the assertion that he immediately rejected the suggestion that all of the AUSAs be fired and that he was not involved in any discussions of the matter?

    The head of the Department of Justice, (who never prosecuted a case) must have forgotten that when you send emails there is an electronic record and it doesn’t just go away.

    Today, ABC News is reporting that soon-to-be released emails show that Turd Blossom and Generalissimo Gonzales were intimately involved in the scheme to replace all U.S. Attorneys.
    White House press secretary Tony Snow told reporters Tuesday that Miers had suggested firing all 93, and that it was “her idea only.” Snow said Miers’ idea was quickly rejected by the Department of Justice.

    The latest e-mails show that Gonzales and Rove were both involved in the discussion, and neither rejected it out of hand.
    Can’t wait to see those emails.

    Actually, Senator Mark Pryor (D-AR) has seen them. What they show is that Kyle Samson had a playbook that was implemented to get around Senate confirmation of Assistant United States Attorneys. The scheme involved stalling the Senate and lying to the members. The email says that all of this will be done in “good faith.” [quotation marks in original]

    Senator Pryor – one of only six Democrats to vote for Gonzalez’s confirmation –reported on the floor of the Senate today that the plan was implemented and that pursuant to it, El Generalissimo performed exactly as directed. He says,
    When the Attorney General lies to a United States Senator, I think it is time for that Attorney General to go. And again, he not only lied to me as a person, but when he lied to me he lied to the Senate, and he lied to the people I represent. And for that reason I am asking him and demanding that he resign today.
    “… and tell ’em Big Mitch sent ya!”

    Tuesday, March 13, 2007

    A Reminder

    The Files—
    Office Files!
    Oblige me by referring to the Files.
    When your Imp of Blind Desire
    Bids you set the Thames afire,
    You’ll remember men have done so—in the Files.
    -- Rudyard Kipling, “The Files
    The Articles of Impeachment adopted by the Committee on the Judiciary on July 27, 1974 contained three Articles. Article 1 referred to the burglary of the headquarters of the Democratic national Committee at the Watergate complex. Nixon was accused of obstructing justice with respect thereto.

    Specifically, the means adopted to further this obstruction included, “interfering or endeavouring [sic] to interfere with the conduct of investigations by the Department of Justice of the United States …”

    Generalissimo Gonzales must go, and if he won’t resign, then he must be impeached.

    “… and tell ’em Big Mitch sent ya!”

    Monday, March 12, 2007

    Can you top this?

    Over on Huffington Post, Steve Benen has an article called “What if we don’t want to ‘Get over it!’” in which he responds to the latest outrage from the Bush mob. Seems King George the Incompetent nominated Sam Fox, a generous donor to the Party of Bush, to be Ambassador to Belgium. Problem is, this same piece of work gave $50,000 to the Swiftboat Vets.

    Some people are unhappy. Not least among them is Sen. Kerry. Benen quotes Wade Sanders, a former deputy assistant secretary of the Navy, decorated former swift boat skipper, and combat veteran, who wrote an op-ed last week attacking Bush’s nomination of Fox: “[A]s a military man, it doesn’t matter much who is being attacked -- John McCain, Max Cleland, John Kerry, or Jack Murtha -- I just don't believe that assaults on the military records of veterans belong in our politics.”

    Frankly, it doesn’t bother me that a political donor got rewarded with a sinecure. The problem for me is that credibility is the main stock in trade of an ambassador, and the swiftboating Sam Fox doesn’t have any.

    What got Benen’s goat was a “largely incoherent” editorial in the WSJ that urges Democrats to “Get over it!” Benin’s article evoked this comment from Tommo.
    The stolen 2000 election. Katherine Harris. Bush v. Gore. Halliburton, Lockheed/Martin, and other crony war profiteers. The Aug. 6, 2001, presidential daily briefing. "My Pet Goat", Jack Abramoff. David Safavian. Ken Tomlinson. Signing statements. The phony Unitary Executive theory. The manipulation of terror alerts. The suppression and perversion of science, especially on global warming. The phony case for war in Iraq. The Downing Street memo. Ohio in 2004. Voting machines. Swiftboating. Claude Allen. Jeff Gannon. The lack of planning for and putting unqualified cronies in high positions in "postwar" Iraq. (See Kate O'Bierne's husband.) Dusty Foggo. Katrina. Michael Brown. Enron. Wiretaps. Bank records surveillance. The $8.8 billion (300 tons of cash) missing in Iraq. Destruction of Habeus Corpus. Torture. Illegal wiretapping/data mining. The politicization of AIDS prevention, the Justice Department, and economic statistics tracking. Unconstitutional Faith Based Initiatives. Cheney's energy task force. Record high gas prices. Gitmo, Abu Ghraib, "Extraordinary Renditions", Mark Foley (covered up by the White House/Rove), 9/11 Workers Health Risk suppression, shooting people in their face then obstructing an investigation, pay for positive political coverage, the destruction of Iraq antiquities, lack of body armor, up-armored Humvees, and training. Walter Reed. U.S. attorneys purge. Scooter Libby and destruction of the covert CIA Brewster-Jennings operation. Less water & electricity in Iraq than under Sadam. The botched execution. Record opium production. The stagnant stock market (markets hate instability). The pitiful state of health care in America; ditto education. The sinking of America's middle class. 3000 dead American soldiers in Iraq, 30,000 wounded, $1 trillion wasted, 650,000 dead Iraqis, 2 million Iraqi refugees. Osama still on the loose and the Taliban still strong in Afghanistan. Kim Jung Il has nukes. China holds a huge part of our debt. Putin is having people assassinated on American soil. Bush is trying to start a war with Iran, who probably couldn't have nukes for ten years. The Saudis are still grooming terrorists. The destruction of Colin Powell. The destruction of the National Guard. Recruiting felons. The world hates us.
    Did he miss anything?

    “… and tell ’em Big Mitch sent ya!”

    Tuesday, March 06, 2007

    Relevant Conduct and Scooter’s sentence

    Sentencing in Federal Courts is guided by the Federal Sentencing Guidelines, which Congress enacted, inter alia to promote uniformity in Sentencing.

    One of the problems associated with achieving uniformity in sentencing is that prosecutors have wide discretion to charge or not charge an offense. Imagine that every armed robbery resulted in a seven-year sentence. A serial offender, who is believed by the prosecutor to have committed 5 crimes could get a sentence between 7 and 35 years depending on which crimes the U.S. Attorney chose to prosecute.

    Police officers have awesome influence, too. Suppose a undercover cop establishes a relationship with a drug dealer. He can buy an ounce or two. He will usually keep at it until he makes a big enough purchase to hammer the defendant.

    To address these problems and others, the Federal Sentencing Commission proposed, and Congress agreed that sentencing would be based upon “relevant conduct,” defined as
    (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

    (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense
    Once the relevant conduct is determined by the court, the sentence is determined by looking on a matrix on which one axis is the offense and the other is the offender characteristics.

    What is the relevant conduct for Scooter’s obstruction of justice? May I suggests that it is Disclosure of Information Identifying a Covert Agent.
    §2M3.9. Disclosure of Information Identifying a Covert Agent

    (a) Base Offense Level:

    (1) 30, if the information was disclosed by a person with, or who had authorized access to classified information identifying a covert agent; or

    (2) 25, if the information was disclosed by a person with authorized access only to other classified information.
    Obviously, Libby had authorized access to classified information identifying a covert agent. Thus, he starts off with a base level of 30. If the court finds that this is the relevant conduct, and assuming that Scooter was as clean as a whistle before this episode, then he is looking at a sentence of 97-121 months, or roughly 8-10 years. About 15% of that comes off for good behavior, but, even still, Libby is looking at real time.

    Additionally, the guideline for Obstruction of Justice assigns an offense level of 14 (or 17, if the offense “resulted in substantial interference with the administration of justice) and also provides that
    if the offense involved obstructing the investigation or prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
    Let’s look at the Accessory After the Fact calculation.

    The accessory after the fact guideline provides that the Base Offense Level is 6 levels lower than the underlying offense. If the base level for the underlying offense, Disclosing Information Identifying a Covert Agent, is 30, as seen above, then Scooter starts off with a Base Offense Level of 24.

    Again, reference to the matrix shows that he’s looking at 51-63 months.

    There are serious reasons for concluding that Libby’s conduct was at the upper range of the guideline, since, after all, we are talking about silencing a critic of the Administration who busted Cheney for misleading the country into war, with the result that an undercover counter-proliferation program was terminated.

    The bottom line here is that Libby is facing a tough choice. He can play ball with Fitzgerald, and substantially reduce his sentence. Or he can prepare to take a 5-10 year trip to the pokey. He can hope for a pardon but if he puts his eggs in that basket, he is risking being an absent father during the next decade of his children’s life.

    Lots of folk are figuring that Bush’s loyalty to friends will result in a pardon. Big Mitch doesn’t believe that it is wise to rely on the loyalty of a narcissistic sociopath like Bush. Even if I am wrong, a pardon probably wouldn’t come until the end of Dubya’s term of office, nearly two years off. There’s a better than average chance that Libby will have to do a year and a half before that happens.

    Keep this in mind when you hear talking heads saying that Libby is realistically facing a sentence of a year or so.

    “… and tell ’em Big Mitch sent ya!”