Posted 5:31 PM by Robert

EXTRA! Saint Rowley Falls From Empyrean Rose Petal! Meuller Talks to Congress!

There is a fine Stuart Taylor article in the June 8 National Journal which expertly explains how the FBI was paralyzed by an ingrained fear of racial profiling and the much-too-high "probable cause" requirement for obtaining a search warrant imposed by the Foreign Intelligence Surveillance Act - a standard which Taylor thinks, contrary to Coleen Rowley, the FBI hadn't met.

CIA and FBI incompetence and organizational flaws may have played a large part in the intelligence failures before September 11. But thinking that Congressional and Executive reforms of the FBI and CIA will be enough to fix the problem in the future is wilfully unrealistic. Taylor says that the FISA and our ideas about profiling should be changed. The Man Without Qualities is in full agreement.

There doesn't seem to be a free National Journal web site, or i would link to it. In the alternative, I would attempt a more extended summary with highlights. But there's no need, since KausFiles (It's the Law, Stupid - Why Coleen Rowley was wrong.) has naturally already done a predictably able job of just that (complete with subtle, witty asides!).

In a related vein, the transcript of Mr. Mueller's recent Congressional testimony has some interesting material:

HATCH: ....Mr. Mueller, as I understand it, the Patriot Act has worked quite well so far, but there is one area where you're having difficulties, and that's FISA requests. We're currently--to get a warrant, there's a requirement of proof of association with the foreign power. Am I right on that?

MUELLER: There is a requirement under the FISA statute that we demonstrate a belief that the person who is under scrutiny and for whom we wish to obtain court-ordered interception is a, quote, "agent of a foreign power." And that has been defined as including an individual who is associated with a terrorist group.

.... prior to September 11 the 19 or the 20 hijackers, it would have been very difficult, because we had--in looking at it, trying to go back we had very little information as to any one of the individuals being associated with...

HATCH: Foreign power.

MUELLER: ... a particular terrorist group.

One of the issues in the Moussaoui set of circumstances was whether or not the evidence was sufficient to show that Mr. Moussaoui was associated with any particular terrorist group. If you talk to the agents--and I know we've had Ken Williams and other agents up briefing the Congress--I believe the agents will tell you that one of the problems they have in this area, which we believe Congress ought to look at, is the requirement that we tie a particular terrorist to a recognized terrorist group.

....Our problem comes in trying to show that a particular individual is connected to a specific, defined--in a variety of ways--terrorist group. I mean, once we get a connection with Al Qaeda, for instance, even though it is not a foreign power, Al Qaeda is sufficiently distinct group so that we can get the FISA that we need.

But we have problems where you have a lone wolf, for instance, who may be out there who we think is a threat, but we have difficulty tying to any particular defined terrorist group.

HATCH: Well, if we try to change that, I presume a lot of civil liberties groups and persons will be very much against making that change.

MUELLER: I can't speak to that, Senator. But I do think it is something that we need to look at and that Congress should take a look at.

Later:

FEINSTEIN: ....Let me take the FISA area. It has come to my attention that at least one major case that I won't specify, the warrant never left the FBI. It never went to the Department of Justice, it never went to the OIPR, where the attorneys are.

I've read the--Mr. Freeh's memo of April the 15th which changed the FISA process, I think based on problems that prior FISA warrant requests had that were egregious, let me say, and so he wrote a memorandum that was very complicated, very difficult, I think, to carry out.
....

MUELLER: Well, let me just go back--the, what they call, I think, the Woods changes that are reflected, I believe, and I am not certain the date, but Mr. Freeh's memorandum, relate to assuring the accuracy of the document that is going to be presented to the court.

And the difficulty we have here is we've got one FISA court situated in Washington, but the persons who are drafting the affidavits and have the information from the investigations are out in the field. And so that is appropriate to assure that there is a certification from the agent in the field as to the accuracy of the document before it goes to the court.

Later still:

Kyl: One, I would like to specifically elicit your views...about the legislation that Senator Schumer and I introduced yesterday, that would make one small but very important amendment to the FISA warrant definition of foreign agent to solve the problem you've identified, that a lone actor out there, a person that you cannot necessarily tie down as a member of the Al Qaeda organization or Hezbollah or some other group or working directly on behalf of the specific foreign government, all you'd have to do is prove that that person was a foreign individual, and you have probable cause to believe that they're involved in terrorism.

And

DEWINE: ....But I would like to make a comment. It seems to me that all the decisions--or the decisions that are made in regard to probable cause at the FBI, at Justice Department, ultimately come back to two things: One is the statute, but then, also, how that statute is interpreted by the FISA court.

I remember when I was a county prosecutor that the police would come in and want a search warrant.... And I would tell them, "Judge so and so won't accept it." And that was my answer. "That's not enough." And I was guided by the Constitution, but I was also, frankly, guided by what the judge I dealt with every day, I knew he would accept or he would not accept.

And I just think that is something that we need to keep in mind as we judge whether or not there is probable cause here, is that we need to--it is important for us, at some point, to look at how it has been--how the FISA law is actually being interpreted and, therefore, what impact it has on the people at the FBI and how Agent Rowley's--people who she has to kick it up the line to.

Let me--while we're talking about FISA, let me make also a comment, if I could, and ask for your brief comment about something else, and that is Senator Kyl and Senator Schumer's bill that they are introducing which would change the FISA law.

There is an interesting article in, I believe, today's "Wall Street Journal" that quotes Philip Heymann, who served as President Clinton's deputy attorney general. And he said that that legislation does not go far enough. And he suggests this. He is quoted as saying that authorities should be able to monitor non-U.S. persons based on a reasonable suspicion that they are engaged in terrorism, not the higher probable cause standard, as the amendment proposes.

I think that is something that we need at least to all look at. We are dealing with people--we're not dealing with U.S. citizens. We are not dealing with legal aliens. We are dealing with non-U.S. persons. And it seems to me that, when we have--if we had reasonable suspicion that they were engaged in terrorism or about to be engaged in terrorism, most Americans, I think, would think that we should grant that search warrant, that we should grant that warrant.

So, I don't know if you want to comment on that or not or if you want to just pass. I will accept either answer at this point.

MUELLER: I think it is something we definitely ought to look at with the department and evaluate whether this is, as far--whether this is the proposal that we should back.

DEWINE: Well, I will accept that answer. And I think it is something that we ought to at least look at. I think we need to understand how FISA really works in the real world. We also need to understand exactly--or have a debate about where we think we should be, what we should be doing in this, in the world we live in today, in regard not to U.S. citizens, but in regard to people who are not U.S. citizens and people who are not legal U.S. aliens.
....

MUELLER: And as I indicated before, this is a problem and we're looking for solutions to address this problem. And I know that the department will have the formal opinion on that, but we are looking for a solution for this problem.

Somehow, despite Mr. Adragna's self-professed and heated concern for "completeness," he seems to have omitted these quotes from the transcript when he excerpted it.

Surely an innocent oversight?

Posted 11:04 AM by Robert

This Here Blogosphere

I agree with the Sarge that the process of creating "criteria for what a blog should be doing" is underway and that it is not a good thing.

But I think the process is more general than that. The process of creating criteria for what the blogosphere is and is doing, and what it should be and should be doing, is also underway - and that it is an even worse thing. There are many signs. Some are silly and fun, but at least half in earnest: time spent on describing the blogosphere "food chain," creating and posting various blogoshere "hierarchies." Some are more pernicious.

But most of the signs seem to have the underlying purpose of pegging blogs and bloggers within some constricting framework. To what good purpose? Of course, people are entitled to write whatever they want.

I'm not referring to general, philosophical meditations that consider questions like: "What does the blogosphere do compared to what mainstream meadi does?" or "does the blogoshere affect the world?" And I'm not referring to bloggers noting or commenting on what other bloggers are doing. I'm refering to the increasingly common practice of some bloggers attempting to impose normative and positve structures on the blogosphere itself.

The Sarge points out that "It's not long until you get from 'this is what a blog is' to 'this is what a blog ought to be.'" And he's right.

It's also true that it's not long until you get from "this is what the blogosphere is" to "this is what the blogoshere ought to be." That is, internal politics of the blogoshere. That's likely going to get really boring and nasty, really fast.

By the way: Just how does the Sarge manage to sound so military while maintaining a tone of underlying thoughtfulness, sweetness and vulnerability? Maybe he's just a thoughtful, sweet, vulnerabile guy? Can't say. Don't know him, myself.

Posted 6:28 PM by Robert

The Sargasso Sea

Chief Justice Rehnquist has written: "the decisional law in the area of double jeopardy is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." The attorneys - and especially the prosecutors - in the obstruction of justice case against Andersen may have drifted far into those treacherous waters.

In the case against Andersen, which just went to the jury, the prosecutors are attempting to prove that at least one of four Andersen employees "corruptly persuaded" someone at Andersen to destroy Enron-related documents: David Duncan, the Andersen partner who has pleaded guilty and become a government witness, Andersen attorney Nancy Temple, and Andersen Houston partners Thomas Bauer and Michael Odom. Yet none of these individuals is a co-defendant with Andersen.

What happens to Nancy Temple, Thomas Bauer and Michael Odom if Andersen is acquitted or convicted (Mr. Duncan has cut a separate deal, and won't be discussed further)? The answer to that question may lie deep in the Sargasso Sea.

At first, the answer seems clear: Nothing happens. None of them is a defendant, so nothing that happens to Andersen will affect the legal status of the individuals. In particular, they could each be charged individually with "obstructing justice" after the Andersen verdict is in, and they could each try to defend against that charge. Since none of these individuals is a defendant, there is no Fifth Amendment "double jeopardy" issue. Case closed.

But navigation isn't so simple in this Sargasso Sea. Suppose Andersen is acquitted. Then that means that the jury will have decided (within the "reasonable doubt" standard) that none of Nancy Temple, Thomas Bauer or Michael Odom was a "corrupt persuader." If the prosecutors later charge any of them with obstruction of justice, can these individuals argue that the government is prohibited from re-litigating the crucial fact that they "corruptly persuaded" another person to destroy evidence? That is: What about collateral estoppel?

Under the doctrine of "collateral estoppel"--also termed "issue preclusion"--a party who has had a full and fair opportunity to litigate an issue and lost in prior litigation may be foreclosed from relitigating that issue in subsequent cases, even where the opposing party is different. The United States Supreme Court has long held that "collateral estoppel" applies to the benefit of a defendant in criminal cases:

"'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85 . As Mr. Justice Holmes put the matter in that case, 'It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.' 242 U.S., at 87 , 37 S.Ct. at 69.7 As a rule of federal law, therefore, '(i)t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of 'mutuality' or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain.''

The Court's note that lack of "mutuality' is irrelevant is important. "Mutuality" exists where the parties to the second legal action are exactly the same as the parties to the first. In the Andersen case none of Nancy Temple, Thomas Bauer or Michael Odom is a defendant. So, if the government later charged one or more of them with "obstruction of justice," there would not be "mutuality." But the Supreme Court language quoted above indicates that lack of "mutuality" doesn't matter.

It seems to follow that if the jury acquits Andersen, each of Nancy Temple, Thomas Bauer and Michael Odom is probably entitled to defend any subsequent action for "obstruction of justice" brought against them, personally, by using collateral estoppel to establish that none of them was a "corrupt persuader." That would be pretty sweet for Nancy Temple, Thomas Bauer and Michael Odom. They don't get indicted or have to stand trial, but benefit from the Andersen acquittal as if they had.

Nor should one feel sorry for the prosecutors, since they brought the problem on themselves. They could have elected to indict each of Nancy Temple, Thomas Bauer and Michael Odom, and thereby make them co-defendants with Andersen - thereby avoiding the problem. But the prosecutors didn't do that. Of course, the prosecutors also extracted a benefit: if these individuals had been indicted and stood trial, each of them could have moved to quash the individual indictment or dismiss during the trial for lack of evidence against that individual. By not charging any of the individuals, the prosecutors avoided this risk. Given how thin the evidence is against each individual, it's understandable the prosecutors would want to avoid that particular risk.

But what happens if Andersen is convicted? Could that have any effect on the fates of Nancy Temple, Thomas Bauer and Michael Odom? Oddly enough, it might. Recall that the jury has to find that at least one of them was a "corrupt persuader" to convict Andersen. Suppose the jury does this and names the "corrupt persuader" - say, Nancy Temple solely for the sake of the example. If the government then charged her with "obstruction of justice" on the exact same facts and evidence, what happens. Can the government claim the benefit of the Andersen jury's specific finding in a case in which Ms. Temple was not even a party?

It is said that the use of collateral estoppel by the prosecution regarding questions of fact for the jury has been disapproved by the United States Supreme Court in at least three cases: Ashe; Simpson and Dixon. But some state courts have applied collateral estoppel against criminal defendants. And some courts are not convinced that the United States Supreme Court really has completely disapproved "offensive" prosecutorial use of collateral estoppel:

"Despite this seemingly absolute [United States Supreme Court] language barring the prosecution from asserting the collateral estoppel doctrine against the defendant on a subsequent prosecution, the language remains dictum. Apparently, the United States Supreme Court has not yet squarely addressed the issue or offered any theoretical underpinning for such a rule. In the absence of a definitive resolution of the issue of mutuality by the United States Supreme Court, some lower courts have developed justifications for the prosecution's assertion of the doctrine against the defendant in cases involving issues of paternity and citizenship status."

But what about failure of "mutuality"? Shouldn't the fact that Ms. Temple is not even a party in the Andersen trial preclude the prosecution's use of collateral estoppel against her?

Well, probably yes. The Supreme Court language quoted above only means that a third party is entitled to invoke collateral estoppel against the government even if "mutuality" fails because the third party was not a party to the original action. That doesn't mean the government can generally invoke collateral estoppel against a third party who was not a party to the original action - which would be ridiculous. There has to be "mutuality" for federal prosecutors to have any chance of using collateral estoppel.

But Ms. Temple lives in Chicago - and that's in the jurisdiction of the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit has held (but in a civil case following a criminal case, which is not quite the same as a criminal case following a criminal case) that a company and its president were in "privity" for purposes of collateral estoppel: "Parties are in privity when 'there is a commonality of interest between the two entities' and when they 'sufficiently represent' each other's interests. Given the close relationship between ... a relatively small company, and [its president], as well as the fact that [its president] was originally named as a defendant in the criminal case and faced with identical charges as [the company] prior to reaching a settlement with the state ... [the company and its president] had a clear 'congruence' of legal issues with respect to the statute, thus establishing privity.'" The significance of "privity" is that collateral estoppel does bind people who are in "privity" with an actual party to the first litigation. Put another way: there is "mutuality" where there is "privity."

Does Ms. Temple have "privity' with Andersen under the Seventh Circuit reasoning? Andersen is certainly not a small company. But on the other hand, there's seems to be a "clear 'congruence' of legal issues with respect to the [obstruction of justice] statute" between Ms. Temple and Andersen. And Ms. Temple may have a lot of leverage over how Andersen conducted its defense. The Supreme Court said in Ashe: "The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." That sounds good, but does it leave Ms. Temple with complete comfort in this case even if it turns out that she - a trained and seasoned attorney - all but directed her aspects of the Andersen defense?

Chief Justice Rehnquist is right: This is a Sargasso Sea. It's always helped to be good with magic in dealing with the Sargasso Sea. Perhaps William Rehnquist and his Supreme Court will have their say on these matters late in the day. Then they'll have a chance to really show their stuff:

Early on the evening, just about suppertime
Over by the courthouse, they're startin' to unwind
Poor kids on the corner tryin' to bring you up
Willie picks a tune out and he knows they gonna start

Down on the corner
Out in the street
Willie and the Poor Boys are playin'
Bring a nickel tap your feet

You don't need a penny just to hang around
But if you got a nickel won't ya lay your money down
Over on the corner there's a happy noise
People come from all around to watch the magic boyz.

Posted 4:06 PM by Robert

Was there ever a time when people with whom you disagreed were so gloriously stupid?

The Bleat makes the answer clear!

Posted 4:32 PM by Robert

Genius in the House

House Minority Leader Richard Gephardt now thinks that the United States should invade Iraq, that President Bush should be doing more for "homeland security" (ACLU, watch out!) and backs the President's defense expenditure proposals.

Matt Miller describes Mr. Gephardt's defense expenditure conversion: "Richard Gephardt entered the gravitas derby this week with a major foreign policy speech that was perfectly terrific — until it gave away the store. Under the president’s plan, Gephardt explained, “we will be spending $470 billion a year on defense by 2007 (up from the $300 billion Bush inherited) ... even at that huge amount, we will need to spend wisely.' Note that Gephardt didn’t challenge that 'huge amount.' Instead he conceded, as all ambitious Democrats have, that they can’t be for 'less' defense than Bush and be viable. If this premise goes unquestioned, Bush will have reached $400 billion with Democratic assent by 2004."

Further, Mr. Gephardt knows what effect backing the President's $470 Billion defense budgets will do to Democratic attempts to use the federal deficit for political gain. Another issue tossed overboard.

All of that suggests that Democratic focus groups and polls (Mr. Gephardt has had no detectable personal political center for quite some time) are not showing a big success in attempts to confront the President on the grounds of defense, other aspects of national security or the budget. In fact, the recent Democrat assault on the President had the predictable effect of making people focus more on foreign, defense and security affairs - and away from traditional Democratic issues (even Enron). Have the Democrats been keeping track of who thinks this stuff up for them?

It doesn't look like the now-traditional Democratic scams of exciting their base by stirring up racial division by invoking "racial profiling," or assaulting Second Amendment rights by bashing "right wing gun nuts," or many other varieties of Clintony mass distraction are going to get a lot of traction in November. And the economy doesn't look like its going to hell in a way that would assist Mr. Gephardt's political ambitions or Clinton-Gore style class warfare arguments.

What's a leader like Mr. Gephardt to do but chant "Yes, yes, yes, Mr. President" - and hope for the best?

Still, it's awfully undignified - and he doesn't make a very perky cheerleader anyway.

Posted 2:11 PM by Robert

Arab-Americans Are NOT Foreigners

UPDATE: It didn't take long:

"Congressman John Conyers of Michigan, the top Democrat on the House Judiciary Committee, denounced the [the Administration's] system [for fingerprinting visitors from higher-risk countries] as employing racial and ethic profiling."

"'Rather than helping to protect our citizens, these registration rules will only serve to further alienate the American Muslim community and our Muslim allies abroad, two crucial allies in our fight against terrorism,' he said."

"Senate Democratic leader Tom Daschle told reporters he gets concerned 'about the long arm of the federal government when it comes to taking actions like this that may or may not be helpful and certainly may be invasive.'

"The plan 'smacks of the sort of tactics' used by totalitarian regimes like Iraq, said Frank Sharry, executive director of the National Immigration Forum."

"James Zogby, president of the Arab American Institute, a policy group, said the change would add to an already overburdened process and would fail to improve security. He called it a political initiative designed to send the message the Bush administration was 'doing something' about terrorism."

Before opening their checkbooks again, prospective Democratic contributors should take note that the top Democrat on the House Judiciary Committee and the current Senate Majority Leader think that the Republican Administration's plan for fingerprinting visitors from higher-risk countries is an unacceptable restraint on civil liberties (or, in the evasive, pseudo-populist argot of Senator Daschle, a "cause for concern").

Are THOSE the guys traditional Democratic contributors think should be running the country?

Maybe House Minority Leader Richard Gephardt should rush over and show Representative Conyers and Senator Daschle the most recent polls and focus group results!

______________________________________________________________________________________________


Despite concerns in some quarters over possible impairment in the ability of the Bush Administration to effectively deal with the "racial profiling" aspect of counterterrorism, the Washington Post reports that the federal government seems to be willing to keep track of foreign visitors from higher-risk countries, including Arab countries. The Post says "Arabs and Muslims reacted angrily," but there is no mention of American Arab or American Muslim organizations reacting at all.

It will be interesting to see how this goes down on the domestic front. My guess is that at least responsible Arab Americans (that is, those such as Spence Abraham - not CAIR) will have no trouble with this. Where the loonier CAIR types come out will tell a lot - possibly bringing good news.

On the other hand, there appears to be no hope for the ACLU, which continues in some pre-September 11 Groundhog Day existence:

"`The Bush Administration is, step by step, isolating Muslim and Arab communities both in the eyes of the government and the American public," said Timothy Edgar, an ACLU Legislative Counsel. 'This latest move needs to be seen in the larger context of all the actions targeted at people of Middle Eastern descent since September 11.'"

The action, of course, is not "targeted at people of Middle Eastern descent" at all.

Rather, the action is targeted largely (but not solely) at people from certain Middle Eastern countries. The ACLU's persistent equation of Arabs and Arab-Americans is downright weird, and as wrong headed as the errant World War II equation of Japanese with Japanese-Americans.

Posted 1:33 PM by Robert

Chicken or Fetus?

Here's a little sample of what to look forward to as the "animal rights" movement gains steam:

"But there was also Rockville teacher Peter Markham, who had raised a skeptical question during the Q and A: 'Should an adult chicken have more rights than a human embryo?'"

"After hedging -- 'I haven't studied chickens' -- Wise says that if the chicken has more 'appreciation for life' than the human embryo, then yes, the chicken should have more rights."

"After hearing Wise out, Markham's more convinced: 'I mean, he doesn't want to give earthworms rights. I agree, you got to make a start somewhere.'"

Thank goodness they cleared that up!

Posted 12:49 PM by Robert

Armed Peace In Our Time

Kristin Anderson wonders why more people aren't looking into the closure of the Army Peacekeeping Institute.

This may be a part of the larger issue of whether the armed forces should be used for police-like activities at all. A soldier is not a policeman, and vice versa. Their training is and should be very different.

But soldiers are often asked to wreck a devastation and call it peace - and then left by politicians to sit on it like Horton on his egg. The results are seldom as whimsical as anything in Doctor Seuss.

Does that mean the Army should have a Peacekeeping Institute?

Posted 12:21 PM by Robert

Male Victims of Female Sex Abuse

Eric McErlain is up in arms over what he says is a disgraceful double standard for treatment of male victims of female sex abuse.

Should he be?

It's up to the reader to decide.

Posted 9:56 AM by Robert

There Is Something About Conspiracies

Mark Riebling says in his OpinionJournal article: "To obtain a warrant from the court [under the Foreign Surveillance Intelligence Act of 1978 (FISA)] ... the attorney general cannot simply aver that the suspect belongs to a terrorist group. Rather, there must be "probable cause" that he has actually committed, or is conspiring to commit, a terrorist act. Since such evidence can seldom be gathered without some form of eavesdropping, FISA creates a classic Catch-22."

Mr. Adragna says that Mr. Riebling misstates FISA. But Mr. Riebling is not quoting FISA - he is paraphrasing FISA. Correctly.

FISA provides for the issuance of a search warrant where there is a showing to the court that "the target of the electronic surveillance is a foreign power or an agent of a foreign power." The "showing" must meet the "probable cause" standard of proof. As noted in a prior post, the now-famous memorandum of FBI Agent Rowley says: "I thought probable cause existed ("probable cause" meaning that the proposition has to be more likely than not, or if quantified, a 51% likelihood). "Probable cause" is NOT defined as a 51% likelihood - but Agent Rowley's observation is helpful and common.

The relevance of this provision of FISA to al Qaeda is that a "foreign power" includes foreign terrorist organizations - that is, it includes foreign terrorist conspiracies. In the case of al Qaeda and similar conspiracies the above provision may be restated as "the target of the electronic surveillance is a foreign terrorist conspiracy or an agent of a foreign terrorist conspiracy."

Being an "agent of a foreign terrorist conspiracy" is the same thing as conspiring through it to commit a terrorist act. The possibility of FISA applying to an "innocent agent" of a foreign terrorist conspiracy is a trivial intellectual puzzle to which no attention need be given at this point.

So the FISA standard can be informally restated in the circumstances relevant to foreign terrorists conspiracies such as al Qaeda as requiring a showing that it is more likely than not that the target "has actually committed, or is conspiring to commit, a terrorist act." As Mr. Riebling wrote.

Mr. Adragna offers other comments of similar depth in the post cited above. The reader is invited to evaluate those comments and reach his own conclusions - and to vote assiduously in November and thereafter.

Posted 10:49 PM by Robert

Convicting Andersen By Calculus?

A front page story in the Wall Street Journal [link requires paid subscription] details how the government's criminal case against Andersen for "obstruction of justice" has changed, in the Journal's words, from a "slam dunk" to a "Hail Mary."

The Journal story notes:

"[I]t's far from clear that the prosecutors have cleared the legal hurdles necessary to convince a jury. According to the 15 pages of instructions drafted by U.S. District Judge Melinda Harmon but not yet delivered to jurors, the panel will have to answer this specific question: Did at least one "agent" of Andersen -- either a partner, officer or employee -- try to "corruptly persuade" another person to keep a document from being available 'for use in an official proceeding?'"

"For these purposes, 'corruptly' means acting with an 'improper purpose,' such as 'an intent to subvert or undermine the fact-finding ability of an official proceeding.' The proceedings at issue are the informal and formal investigations by the SEC; lawsuits by private litigants don't count. The jury needs just one person who did all those things to merit a conviction, be it a low-level clerk or a top partner. And the government doesn't have to prove the SEC had even started its proceedings or issued any subpoenas yet."

"Prosecutors have fingered four alleged 'corrupt persuaders': Mr. [David] Duncan, [the Andersen partner who has pleaded guilty and become a government witness], Andersen attorney Nancy Temple, and Houston partners Thomas Bauer and Michael Odom. ... "

"The Justice Department is hoping to secure an Andersen conviction as a building block toward indictments of former Enron executives, whose cases could prove far more complex to prosecute."

The Journal goes on to describe just how weak the cases the government has been able to present are with respect to each of these four "fingered" individuals (none of whom is actually a defendant in the trial). Since the prosecutors must prove guilt beyond a reasonable doubt, the weakness of the cases against the four individuals is striking. The evidence against Ms. Temple, for example, seems to amount to the fact that she urged people working within Andersen on the Enron matter to comply with Andersen's document retention policy - a policy which by its terms did not allow destruction of documents to impede an investigation - and the following:

"Ms. Temple discussed the situation with her boss and the firm's litigation director. Her handwritten notes of their Oct. 9 phone call say, "Highly probable some SEC inquiry." She also wrote that the firm probably could be charged with violating an order it signed that year to settle a civil-fraud suit by the SEC over its audits for Waste Management Inc."

Does that amount to proof beyond a reasonable doubt that Ms. Temple was a "corrupt persuader?" The reader is invited to evaluate that for herself - but it does not even seem close to me.

The cases against all of the "fingered" individuals are so weak that one might get the impression that the prosecutors are trying to obtain a conviction of Andersen by proving something subtly less than the law requires. Specifically, the prosecutors seems to be trying to prove beyond a reasonable doubt that one of the four fingered individuals must have been a "corrupt persuader" instead of proving that a particular fingered individual was a "corrupt persuader" beyond a reasonable doubt.

The above distinction is likely confusing to many people, but an example may make it clear. Suppose "reasonable doubt" means - solely for the sake of the example - less than 10% chance of innocence. To obtain a conviction of Andersen, the law requires that the prosecutors prove that there is less than a 10% chance that a particular fingered individual (say, Ms. Temple) was not a "corrupt persuader." Thus, if the prosecutors can show only that there is more than a 50% chance that each of the fingered individuals was a "corrupt persuader," then Andersen is supposed to be acquitted.

But if the prosecutors can show that there is at least a 50% chance that each of the fingered individuals was a "corrupt persuader," and one assumes the probabilities are independent, then the chance that at least one of the fingered individuals was a "corrupt persuader" is less than 10%. In fact, it is less than (.5) X (.5) X (.5) X (.5) = .625 = 6.25%.

"Reasonable doubt" is NOT legally defined in terms of percentages and statistics. But in many ways "reasonable doubt" and other legal standards of proof behave as if they were defined that way. For example, the now-famous memorandum of FBI Agent Rowley says: "I thought probable cause existed ("probable cause" meaning that the proposition has to be more likely than not, or if quantified, a 51% likelihood). "Probable cause" is NOT defined as a 51% likelihood - but Agent Rowley's observation is helpful and common. Similarly, "reasonable doubt" is sometimes described informally (and NOT legally) as "less than a 10% (or 5%) chance of innocence." More to the point: in a juror's mind the "reasonable doubt" standard can often act in a way similar to its statistically defined pseudo-twin (that is, "less than a 10% (or 5%) chance of innocence)."

The instructions have not yet been read to the jury. Before that happens, the Andersen attorneys had better make sure that the instructions do NOT ask the jury to decide beyond a reasonable doubt: "Did at least one 'agent' of Andersen -- either a partner, officer or employee -- try to 'corruptly persuade' another person to keep a document from being available 'for use in an official proceeding?" THAT question completely obscures the distinction described above - and opens the door to an improper conviction. Which may be exactly what the prosecutors have been reduced to relying on.

Posted 12:51 PM by Robert

Uncuff Campaign Contributors and Voters

Mark Riebling presents an excellent outline of how and why liberal Democrats have demolished much of the nation's intelligence capability over the last thirty years - including the disastrous passage of the Foreign Intelligence Surveillance Act of 1978 (FISA). His analysis is consistent with those of the Man Without Qualities and KausFiles - and expands on them.

Mr. Riebling characterizes needed reforms - including but by no means limited to amendment of the FISA "probable cause" standard for monitoring and searching people who are not Americans as "uncuffing the FBI." That's a fair characterization. But what really needs doing is to Uncuff Campaign Contributors and Voters. It is unlikely that locating liberal Democratic culpability in the demolition of the intelligence services over the past thirty years - and especially during the Clinton Administration - will easily translate directly into a major campaign issue. The facts and circumstances are just too complex for the general voting public to absorb in the way campaign issues take on life. However, the large campaign contributors have more resources and sophistication than the general voting public - and it is possible that many of them will understand how destructive liberal Democrats both in the White House and in Congress have been - resulting in hugely increased vulnerability for the United States and its allies, including plucky and endangered Israel. Many traditionally Democratic donors may see the light and stop financially supporting the likes of Democrats who have done this. Perhaps particularly culpable actors - such as Senators Leahy, Daschle and Clinton - could be pressured to withdraw from attempts to run again and to keep quiet in their time remaining. Even the egregious career of Senator Kennedy - correctly identified by Mr. Riebling as a central malfeasant in this matter - may be eased to its effective and long-deserved end. The best way to uncuff the campaign contributors is to inform them - and, through them, the voters.

A growing number of media figures seem to be awakening. Mr. Adragna has received this e-mail from Stuart Taylor, columnist at National Journal:

"Hello. I just read your May 28 posting on Mickey Kaus re FISA, Mickey's response on Slate, and the Leahy statement that you cited. Unless I have missed something, Mickey has won the argument on a knockout."

"By the way, it means very little that Rowley, in asserting that FBIHQ blew it, complains not about the statute but about the HQ interpretation of the statute and evidence. It would hardly advance her cause to say that even if FBIHQ was right that the evidence didn't satisfy the statute, HQ should have sought a warrant anyway because the statute is too stringent."

"And your statement that everybody now agrees there was probable cause is inconsistent with my impression that FBIHQ STILL maintains (rightly or wrongly) that probable cause was lacking before 9/11."

"Will you have a rejoinder?"

"Sincerely, Stuart Taylor"

Mr. Adragna goes on to say that he "responds" - even while admitting that he offers nothing new: " I know that I'm sounding like a broken record."

In a later post, he rehearses the spurious Fourth Amendment arguments already addressed here. For example, Mr. Adragna quotes Representative Bob Barr's (R. Ga.) concern about expanding the government's ability to monitor Americans as relevant to what the FISA standard should be in monitoring non-Americans.

Slate's Fray includes additional undoing of Mr. Adragna's positions by Patrick Sullivan.

Another commentator, Mark R. Levin, has good observations.

As noted before, Nicholas Kristof has crafted a surprisingly introspective and insightful New York Times column, which includes this observation:

"So it's time for civil libertarians to examine themselves with the same rigor with which we are prone to examine others. The bottom line is that Mr. Moussaoui was thrown in jail — thank God — not because there was evidence he had committed a crime but because he was a young Arab man who behaved suspiciously and fit our stereotypes about terrorists. One of the most widespread canards since 9/11 is that he wanted to learn to fly a 747 but not how to take off or land. That is completely false; on the contrary, repeated F.B.I. statements show that he specifically asked for instruction on taking off and landing."

"Mr. Moussaoui aroused suspicion for much milder behavior: he paid $8,000 in cash for the flight lessons; he expressed "unusual interest" in the notion that a plane's doors could not be opened during flight; he was a wretched pilot and yet wanted to learn how to fly a jumbo jet."

If what Mr. Kristof writes is true, are civil libertarians or anyone else willing to assert that prior to September 11 there was indeed sufficient FISA "probable cause" for issuance of a warrant to search his property?

Where are the media interviews with the FBI(Washington) officials who denied the warrant? Where are the full evaluations of that "French intelligence" which the FBI did not present to the FISA court even after the events of September 11? Little seems to be known about it beyond the third-hand bits included by Agent Rowley in her now-famous memorandum.

And about Agent Rowley's memorandum. It also includes "Footnote Seven," which has been partially quoted by some (including Mr. Adragna) as suggesting that no amendment of the FISA "probable cause" standard is required. As noted in a prior post, even the portion of Footnote Seven that such people have quoted is quite unpersuasive. However, it is noteworthy that the rest of Agent Rowley's Footnote Seven somehow doesn't get quoted by such people. Indeed, Mr. Adragna admitted he hadn't even read the Footnote Seven in Rowley's memo before writing his first comments on it ("Yup -- I didn't read the footnote, because I thought the body of the letter was clear enough.), an astonishingly awful admission of a basic fact-checking felony by Mr. Adragna. The portion of Footnote Seven still omitted by Mr. Adragna - despite his lectures on the importance of completeness - says:

"Another factor that cannot be underestimated as to the HQ Supervisor's apparent reluctance to do anything was/is the ever present risk of being "written up" for an Intelligence Oversight Board (IOB) 'error.' In the year(s) preceding the September 11th acts of terrorism, numerous alleged IOB violations on the part of FBI personnel had to be submitted to the FBI's Office of Professional Responsibility (OPR) as well as the IOB. I believe the chilling effect upon all levels of FBI agents assigned to intelligence matters and their manager hampered us from aggressive investigation of terrorists."

The IOB was created in 1976 as a result of the pressures from the Church and Pike committees, and "reformed" during the Clinton administration. It would be helpful to know just what "alleged IOB violations on the part of FBI personnel" were actually "written up," especially since it seems that the IOB was responsible for the Clinton directive to not use "unsavory individuals" as sources:

"The Intelligence Oversight Board, a presidential advisory panel charged over a year ago with analyzing U.S. intelligence agencies' conduct in Guatemala, released a public version of its findings on June 28. The four-member panel began work in mid-1995, shortly after revelations that a Guatemalan colonel implicated in high-profile killings was on the CIA payroll."

"The long-overdue report found that the CIA maintained several known human rights abusers as paid "assets" as late as 1994, at the same time withholding from Congress information about its relationships with these 'unsavory' individuals. The report found no criminal wrongdoing and offered little new information on cases of U.S. citizens murdered or otherwise harmed in Guatemala. It did criticize agencies' failure to inform victims of their cases' progress."

"While claiming that the CIA mission in Guatemala was not a "rogue mission," the report asserts that intelligence officials became too close to their contacts, to the extent that they overlooked their criminal behavior."