Man Without Qualities

Saturday, July 24, 2004

Pathetic ... And Bound To Lose XLIX: UPDATE TO: Misquoting And Not Paying Attention At The Washington Post

Another, more extensive, Kerry quote:

Democrats shifted their attention from the report's limited faultfinding to what is likely to be the next political battle: a pre-election struggle to turn the commission's extensive policy recommendations into law. Kerry issued a statement applauding plans by Sens. John McCain (R-Ariz.) and Joseph I. Lieberman (D-Conn.) to write legislation based on the recommendations. "The administration and the Congress must get to work on this legislation immediately," Kerry said. Promising to convene an "emergency security summit," he added: "If I am elected president and there has still not been sufficient progress on these issues, I will not wait a single day more."
Same evasions. Still no call for Congressional "enactment" of any particular reform proposed by the Report. Same ambiguous call for others to "get to work" while he holds back on all substance until such time as he is elected president.

And we also have this:

Democrats served notice that they will try to deny Bush an opportunity to rebuild his terrorism credentials and that they will do this by fighting for more expeditious action on the recommendations -- an unusual proposition three months before the election. Former Clinton chief of staff John D. Podesta complained that GOP leaders "have promised no action on the recommendations until after the November elections." He added: "Americans deserve that this report be taken seriously and acted on without delay and with bipartisan support."
Mr. Podesta's primary loyalties are to the Clintons, and he is likely speaking for them - especially her. It is also probably no accident that he is well ahead of Senators Kerry and Edwards. It will be interesting to see what happens if the administration forces Senator Kerry's hand by actually having Congress step up before election day, as Mr. Podesta demands - and as today's reports now indicate the White House favors.

FURTHER UPDATE: More nuanced evasion from the Kerry-Edwards camp. This press release/open letter to the September 11 Commission was posted today on the Kerry-Edwards campaign website. It is designed to suggest that Senator Kerry is all for legislation enacting the Commission's recommendations (quoted extensively in the addendum):

I support the recommendations you have made for making our nation as safe as it should be. You said Thursday that we look back so that we can look forward. I agree, and I share the Commission's view that America must act now, without delay. A number of the recommendations can be implemented directly by the President, while others will require legislation. I offer my full support for immediate action and will work with you to implement the recommendations.

But a closer reading indicates that the letter/release is not such an endorsement at all. Of course, the first tip-off is that it is preposterous to expect Senator Kerry or anyone to endorse every recommendation of almost any commission reporting on a topic this complex. Yet Senator Kerry's letter/release seems to do just that - quoting and endorsing what seems to be every single Commission recommendation, right down to the Commission's semicolons. How could that be?

Well, it isn't. In fact, any suggestion that the letter/release is intended to actually bind the Senator to actually supporting enactment of the recommendations for which he says he "offer[s his]full support for immediate action and will work ... to implement" is undermined by this caveat:

Your Commission has provided an excellent roadmap to make our nation as safe as we can be and now we must work out the details in a bipartisan manner that lets us accomplish our goal of defeating the terrorists and protecting our nation.
Ah, yes. We all share the same "goal" of "defeating the terrorists and protecting our nation." But our approach to reaching those "goals" must be "bipartisan" - and on the Democratic side, that, of course, means something like the Church Committee approach that erects a wall between criminal and intelligence investigations. The Patriot Act - which is clearly endorsed by the Report's recommendations? Well, there's no real "bipartisan" support for that Act.

Work out the details in a bipartisan manner, is it? The devil here is clearly in those very details. What else could Senator Kerry mean?

In any event, the caveat that now we must work out the details in a bipartisan manner that lets us accomplish our goal of defeating the terrorists and protecting our nation is quite clearly intended to reserve Senator Kerry's right to respectfully disagree with any one of the recommendations he purports to "support."

Now that's what I call nuance.

But all the fancy, evasive, nuanced wordplay isn't likely going to hold up if Congress actually has to step up to the plate before the election. For that matter, it probably won't hold up through the first Presidential debate.


It seems likely that once Congress is seriously pressed to act, or Bush presses the point in the debates, Senator Kerry is simply going to have to choose. He can repudiate the essence of the basic recommendations of the September 11 Report, which would be consistent with his own history and that of his wing of the Democratic Party, but will pose very obvious problems for him that he is now trying desperately to avoid with his nuancy, non-responses. Or he can embrace the basic specific recommendations of the Report, in which case the Senator is going to have to deal with alienation of his left wing, which of course is what Ralph Nader is waiting for. That is, Senator Kerry is going to have to deal with the reaction of people who write this kind of thing in The Daily Kos:

Certainly, our intelligence operations need improving. ... On the other hand, this call to do something right this instant gives me the creeps. The 9/11 Commission has, after all, recommended the broadest overhaul of U.S. intelligence in five and a half decades, one that will be with us for many decades to come. Every great change generates unintended consequences. Speedy change offers vast potential for more such consequences. For instance, one key recommendation is centralization. That could be beneficial or terrifying. ... Finally, if you're like me and took a dim view of certain aspects of the CIA and our overall intelligence operations long before the failures associated with 9/11, you'll want Congress to make any changes slowly enough that issues such as those brought up in the 1975 Church Committee report are not forgotten.
Ah, yes. The 1975 Church Committee. It certainly will be interesting to see how the recommendations of this Report - which, as noted above already encompass the Patriot Act so hated by the left and then a lot more - can be reconciled with the approach and imperatives of the Church Committee, which essentially shut down human operations in the CIA, prohibited many necessary intelligence operative dealings with "criminals," erected all of those "walls of separation" between intelligence functions and institutions, and lots, lots more to impede the connecting of dots. The 1975 Church Committee, whose leavings Senator Kerry and the entire left wing of the Democratic have embraced as sacred catechism for a very long period spanning the entirety of John Kerry's career in the Senate - and which are still no doubt as fresh and dear to him and them as a Linda Ronstadt song heard on a 1970's "Oldies" station.

None of this is intended to suggest that Mr. Bush is likely to embrace the entire set of Report recommendations. He and his senior administration representatives have been fairly clear about that, as recounted in this Associated Press report, for example:

Legislation that would carry out two of the report's recommendations will be the focus of an unusual round of hearings in August while Congress is in recess. "The 9/11 commission's recommendations will help guide our efforts," said the president. "We will carefully examine all the commission's ideas on how we can improve our ongoing efforts to protect America and to prevent another attack."

Kean, a Republican, has left no doubt what he thinks should be done, saying that unless the panel's recommendations are implemented swiftly, "we're more vulnerable to another terrorist attack." "We're in danger of just letting things slide. Time is not on our side," Kean said.

Bush has not said how quickly the administration will act. Two important administration officials, Homeland Security chief Tom Ridge and acting CIA director John McLaughlin, oppose a Cabinet-level overseer of the intelligence apparatus, saying improving the current structure is what is needed.
But "improving the current structure" through legislation tending substantially in the direction of the establishment of a Cabinet-level overseer of the intelligence apparatus, or otherwise materially advancing the recommendations of this Report, would be violently inconsistent with the 1975 Church Committee approach. Liberal foes of the Patriot Act vigorously pointed out that inconsistency in connection with that Act's passage - and the Report recommendations go much further.

And the White House seems to have figured that out.

STILL MORE EVASION: From the New York Times:

Mr. Kerry said he had skimmed parts of the report overnight and found at least two dozen proposals that could be adopted through presidential prerogative, saying, "I would act with great haste."

"If I were president today, or yesterday, I'd be appointing one person in the White House responsible for liaison with the Congress and the agencies immediately to implement immediately the vast majority of the recommendations of the 9/11 commission," he said. "I wouldn't waste a moment in order to make America as safe as it can be."

"I regret that many of these have not been put in place over the course of the last few years," Mr. Kerry added.
Whatever is that response supposed to mean? The Report's recommendations that the Senator regrets "have not been put in place over the course of the last few years" only amount to "many of these" made in the Report. But that seems to be fewer that the "vast majority of the recommendations of the 9/11 commission" that he refered to one sentence back. And his open letter to the September 11 Commission Co-Chairs wants to imply that the Senator supports all of the Report's recommendations. So does he support Congressional enactment of "many of these" recommendations, the "vast majority" of those recommendations or "all" of those recommendations?

Senator Kerry is perfectly capable of saying clearly and consistently whether he supports immediate or rapid Congressional enactment of "many" or a "vast majority" or "all" of the Report's recommendations, if that's what he believed. But whatever his various responses mean, or are supposed to mean, one should keep in mind that the Senator hasn't said that he supports Congressional enactment of "all" of the Report's recommendations, or the "vast majority" of them, or "many" of them - although his responses can be reasonably read to suggest all of those possibilities. In fact, the Senator has not said that he supports Congressional enactment of any of the Report's specific recommendations.

As noted above, there are good reasons for that straddle.

And, for the record, maybe someone can let me know how the Senator managed to write that open letter to the Commission Co-Chairs that's on his campaign website, the one listing and putatively supporting all of the Commission's recommendations, even though the Senator told the Times that he had skimmed parts of the report overnight?

He's a remarkable man, that Senator Kerry. A remarkable man.

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Home Run For Mr. King

Washington Post columnist Colbert I. King hits a home run with a completely intelligent, down-to-earth, spin-free call on Sandy Berger's lifting of classfied documents:

At issue is not Berger's sense of injustice or embarrassment, or the gotcha game that is being played out by Republicans, or the Democratic establishment's willingness to give Berger the benefit of the doubt because he's one of their own.

The question is, was Sandy Berger's violation due to negligence -- at best -- or was it deliberate -- at worst? And should he be held accountable for his actions? Or is he too important and well-connected to be treated like everyone else? What's the answer, Washington?

Read the whole thing.
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Pathetic ... And Bound To Lose XLVIII: Misquoting And Not Paying Attention At The Washington Post

The Washington Post reports that President Bush's embrace of the September 11 Commission Report recommendations is so complete that the administration may move for Congressional action to enact those recommendations before the election. That's all well and good. However, the Post then reports:

Sen. John F. Kerry (D-Mass.), the presumptive Democratic presidential nominee, on Thursday urged rapid action on the Sept. 11 commission's recommendations. Kerry said that if reforms are not enacted and he is elected president, he would immediately convene a security summit to push for changes.

Really? As noted here previously, John Kerry actually said:

This report carries a very simple message for all of America about the security of all Americans: We can do better. ... We must do better, and there's an urgency to our doing better. We have to act now. ... If I am elected president and there still has not been sufficient progress rapidly in these next months on these issues, then I will lead. .... Unfortunately, this administration has had an ongoing war between the State Department, the Defense Department, the White House. ... People have been at odds, everybody knows it, they'll deny it, but everybody does know. And the fact is that it has created a struggle that has delayed our ability to move forward.

Does "if I am elected president and there still has not been sufficient progress rapidly in these next months on these issues, then I will lead" mean the same thing as "if reforms are not enacted and he is elected president, he would immediately convene a security summit to push for changes?" I don't think so. But in either event, neither construction of the Senator's highly nuanced (O that word again! - one might say with more accuracy "deliberately confusing") position is that he definitely has not said that the "reforms" he will insist see "sufficient progress" are the "reforms" included in the Report.

So here's a question for the media to ask Nuancy Boy:

Senator Kerry, do you favor Congressional enactment of the main recommendations of the September 11 Commission Report, including the integration of the intelligence services under a cabinet level intelligence tsar as the Report suggests?

The problem is not just that the Senator's statement doesn't track the wording of the Post article. The Report and the Senator's stated position are, in fact, irreconcilable. The Report rejects the conclusion that the intelligence problems are attributable to the peculiarities of any particular administration. Instead, the Report stresses the need for specified legislated structural reform. But Senator Kerry says the problems addressed by the Report are attributable to an ongoing war between the State Department, the Defense Department, the White House that he will fix once he is elected. That means there is no urgent need for substantial legislative reform within the Senator's approach.

In his typical fashion the Senator grossly dilutes the Report's conclusions and specifically avoids endorsing any of its detailed recommendations: This report carries a very simple message for all of America about the security of all Americans: We can do better. ... We must do better, and there's an urgency to our doing better. But the Report has a lot more to say than that "very simple message" - and a lot of its recommendations, especially the recommendations for legislation integrating the various "walled off" intelligence services - are wholly inconsistent with the approach of liberal Democrats, including Senators Church and Kerry, for decades. The Report does not view all efforts to "do better" as equivalent as long as they possess "urgency." The Report says there are certain specified things that we must do to "do better." But the Senator doesn't say he endorses those things, and those things are certainly not consistent with his past approach or that of his liberal wing of the Democratic Party, most notably the Church Committee and its descendants.

And, just for the record, my guess is that senior White House operatives have detected the deep problems that the Report's specific legislative recommendations pose for Senator Kerry and the Democrats, and (unlike the Post) have paid attention to the Senator's evasive, nuancy non-response. And, remember, the New York Times noted that compared to the Senator, Mr. Kerry's running mate, Senator John Edwards, was more circumspect in his response to the report ... . I further speculate that the fast-tightening White House bear hug of the Report and its specific recommendations is largely a consequence of the administration's growing understanding that those recommendations pose a much bigger problem for Senator Kerry and liberal Democrats generally than they do for the White House and Republicans. That should all come to the surface pretty fast if Congress is asked to act before the election - which is exactly what the Post reports the administration (and probably Republicans in Congress) would like to see happen.

"Urgency?" Nothing in the Capitol air excites a sense of "urgency" in Congress like a heady perfume with an animal base note of election year partisan advantage concealed by a woody top note of general national need recommended by a sainted independent commisssion!

Ah! Breath it in!

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Unintended Consequences?

His mind concentrated by a close-up look at Bill Clinton's anti-trust noose, Bill Gates, long presumed non-partisan or somehow vaguely moderate-Democratic, has become a rather high-profile Republican.

And now Microsoft is reportedly selling Slate, it's non-partisan or somehow vaguely moderate-Democratic on-line magazine.

The Clintonian enforcers joining with certain Utah Republicans (home of a Microsoft competitor) argued that Microsoft's browser-dominance allowed it to control the future! The "future," at the time, was the same as the ill-considered internet boom. That "future" is now long over, leaving us with the remains of the Microsoft case (Europeans salivating at the prospect of savaging Microsoft) and the question:

When the Beltway crowd maintained their ill-considered jihad against Microsoft did they imagine they would be affecting Mickey Kaus so profoundly?

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Friday, July 23, 2004

Berger Rejected Four Plans To Kill Or Capture Bin Laden
The Washington Times reports:

President Clinton's national security adviser, Samuel R. Berger, rejected four plans to kill or capture Osama bin Laden, worrying once that if the plans failed and al Qaeda launched a counterattack, "we're blamed." ....

According to the [September 11 Commission] report, the first plan of action against bin Laden presented to Mr. Berger was a briefing by CIA Director George J. Tenet on May 1, 1998. Mr. Berger took no action, the report says, because he was "focused most" on legal questions.  "[Mr. Berger] worried that the hard evidence against bin Laden was still skimpy and that there was a danger of snatching him and bringing him to the United States only to see him acquitted," the report says.     Mr. Clarke asked Mr. Berger: "Should we pre-empt by attacking [bin Laden's] facilities?" Mr. Berger decided against it, but later that year, Mr. Clinton ordered an attack on a chemical plant in Sudan that was suspected of providing bin Laden with dangerous weapons material.

Another opportunity to strike at bin Laden occurred on Dec. 4, 1999, according to the report, when Mr. Clarke suggested carrying out an attack on an al Qaeda training camp in Afghanistan in the last week of the year.     "In the margin next to Clarke's suggestion," the report states in a footnote, "Berger wrote, 'no.'

Finally, in August of 2000, five months before Mr. Clinton left office, Mr. Berger was told that aerial surveillance from a Predator drone suggested another opportunity to kill bin Laden.     Mr. Clarke told Mr. Berger that the imagery captured by the Predator was "truly astounding," and expressed confidence that more missions could find bin Laden. Mr. Berger, however, "worried that a Predator might be shot down, and warned Clarke that such an event would be a 'bonanza' for bin Laden and the Taliban."     "In the memo's margin," the report states, "Berger wrote that before considering action, 'I will want more than verified location: we will need, at least, data on pattern of movements to provide some assurance he will remain in place.'

The commission's report also notes a speech that Mr. Clinton gave to the Long Island Association on Feb. 15, 2002, in which — in the answer to a query from a member of the audience — he said that Sudan offered to turn over bin Laden to U.S. custody, but Mr. Clinton refused because "there was no indictment" in hand.

Mr. Clinton told the commission in April that he had "misspoken" and was never offered bin Laden.
There's more. The whole story is a grim view of the ghastly decision making process that characterized the clown show that was the Clinton administration. And the Kerry camp is already hiring these guys again!
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More Democratic National Committee Paranoia

It is a well known device - pioneered by Mr. Gergen - for government officials to "dump" information to which they don't want the public to pay much attention on Friday afternoons.

But that doesn't stop Democrats from paranoid musings that it is all about them - whatever "it" happens to be and even when "it" is all about a Republican president:

The Democratic National Committee called the "supposed discovery" of Bush's payroll records late on Friday -- on the eve of the Democratic National Convention -- "highly questionable."

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Pathetic ... And Bound To Lose XLVII: Comic Relief

Why does the Los Angeles Times spend good money on its ridiculous and methodologically absurd polls and on attaching Ron Brownstein's Democratic cheerleading (er, I mean "poll analysis") to them when the paper already runs a perfectly serviceable funnies pages?

The reader may recall that last month's Los Angeles Times poll showed John Kerry leading George Bush by more than 7% - a result which Karl Rove promptly pointed out was not even mathematically consistent with the details of the poll results unless Democrats had been over-sampled by more than 10%. Mr. Rove turned out to be right.

Now the Times is back with a "new" poll and mostly absurdist color commentary from Mr. Brownstein that does not even mention, never mind admit, the sampling problems of last month's poll - but which now shows Senator Kerry leading Mr. Bush by a mere 2% among registered voters. There is no mention of the party affiliation of the sampled voters, and Mr. Brownstein directly compares this month's results to last month's - all of which ought to means that the poll methodology has not been changed, unless the Times is leaving out a whopping material fact that makes Mr. Brownstein's comparisons completely misleading. But what else would be new? Mr. Brownstein's comments are discussed a bit here and here, but I want to focus on what is really the biggest news in this poll. Mr. Brownstein notes:

The poll found signs of positive trends for Bush since the June survey. The 54% who say the country is on the wrong track is down from 58% last month; the percentage that says the economy is doing well edged up from 51% last month to 55% now. But both those changes are within the survey's margin of error.

Kerry's lead has also dwindled since June. In the new survey, he leads Bush by 48% to 46% in a two-way matchup; last month he led by 7 percentage points. In a three-way contest, Kerry now draws 46%, Bush 44% and Nader 3%; last month, Kerry held a 6-percentage-point lead in this matchup.

While the media just doesn't want to address it, what we are seeing here is the glacial advance of the continuing good news for the domestic economy. Even in this preposterously biased poll, Kerry is shrinking and both the "right/wrong track" question, and its near-surrogate asking if the "economy doing well/poorly," each swung 4% in favor of the incumbent in one month. As often noted here, if the economy continues to improve, that progression will continue for the next several months leading to the November election. The accumulation of that trend would be more than enough to put Mr. Bush and his party snugly back in power.

That the Democrats and the campaign will focus on the domestic economy is further evident from the poll being just chocked-full of reasons for Senator Kerry to steer well clear of terrorism-related and "values" topics. For example, there is Mr. Brownstein's buried admission that Bush leads by 18 percentage points when voters are asked which candidate "would be best at keeping the country safe from terrorism"; he holds a 6-percentage-point advantage when voters are asked which candidate shares their moral values. Sure enough, the Senator has promised to begin to "lead" on intelligence reform and terrorism only well after he takes office, so don't bother him for terrorism "leadership" or ideas during the campaign.

Seems like he'd much rather talk about how the economy is failing voters in those "battlefield states."

Fancy that. Who would have thought such a thing?
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Pathetic ... And Bound To Lose XLVI: Spinning And Spinning In A Widening Gyre

Frankly, one tires a bit of pointing out that the coming election will be driven by the domestic economy even as the media fusses endlessly over what sometimes seems like every nit of the War on Terror and foreign affairs (Was there another roadside bomb outside Baghdad? How about that electrifying poll of asking Americans if they "approve of torture?")

But release of the September 11 Commission counts for something worth some serious consideration - although not much new. The full Report is Brobdingnagian and willfully diffuse - but its Executive Summary is worth reading. The Democrats and their media hangers-on seem to have been a bit gobsmacked by the Report's failure to criticize the Bush administration. The Dems and their media for some unaccountable reason were counting on such criticism (did Ms. Gorelick steer them wrong?) - even to the point of arguing as late as yesterday that the disclosure of Sandy Berger's thefts of confidential documents was motivated by administration intent to "distract" the public from the Report. It would be interesting to revisit with Messrs. McAuliffe and Gergen and others who voiced such opinions to ask them now exactly what they find in the Report from which the administration wanted to "distract" the public. 

Public expressions of Democratic hope on this count seems to gush endlessly, if not spring eternal, even as their media sycophants acknowledge disappointment, as with this hilarious spin by Dan Froomkin in the Washington Post

It was an indictment without a defendant. Bush praised the report yesterday morning, and by afternoon was describing its recommendation as consistent with his policies. Underneath its everyone's-to-blame veneer, the report includes some weighty assertions that are potentially very damaging to the White House. The report, for instance, criticizes the concept of the "war on terror" that has been the signature issue of Bush's presidency. It concludes that what is required to defeat Islamist terrorism is something more nuanced than that. And it does not support the argument that the war on Iraq was either related to or helpful in that quest.
Does any serious person think that "underneath" this Report immediately praised and embraced by the President is a disaster for him and his administration? Such an assertion is in the same nonsense category as Linus Roache's line from The Chronicles of Riddick that "The Underverse will be reached only by those who have embraced the Necromonger faith!" One can just imagine the whoops of delight at 1600 Pennsylvania Avenue if the Kerry-Edwards campaign had the temerity to repudiate the War On Terror  in favor of something "more nuanced than that." And Mr. Froomkin seems not to have carefully read the Report's language regarding Iraq and terrorism, since that language is now so complex and "nuanced" as to be essentially anodyne - almost incomprehensible. Abandoning the Commission's interim conclusion of no "collaborative relationship" the Report now finds no "collaborative operational relationship" to attack the U.S. Huh? Whatever that means, it won't make for a good bumper sticker.

On first reading the Report seems to be mostly a big criticism of liberal Democratic intelligence policies going back to the Church Committee. For example, the Report urges that the CIA, FBI and other intelligence agencies be given an common chief and otherwise more closely integrated. Could there be a more thorough repudiation of the grotesque Church Committee approach? The Wall Street Journal gets this aspect of the Report exactly right by pointing out that the Report is largely an assault on the infamous "wall of separation" between intelligence and law enforcement that was reinforced in 1995 by Clinton Deputy Attorney General (and 9/11 Commissioner) Jamie Gorelick. The Patriot Act took down that wall, and the report amounts to a rousing endorsement of that much-maligned legislation." Worse for liberal Democrats, the Report is full of recommendations for legislation running entirely against their whole philosophy of intelligence gathering.

Is the Kerry-Edwards campaign going to embrace all that? It seems to have escaped the notice of Mr. Froomkin and the liberal media generally that John Kerry and his clique have not embraced the Report, as with these comments from Senator Kerry:

This report carries a very simple message for all of America about the security of all Americans: We can do better. ... We must do better, and there's an urgency to our doing better. We have to act now. ... If I am elected president and there still has not been sufficient progress rapidly in these next months on these issues, then I will lead. .... Unfortunately, this administration has had an ongoing war between the State Department, the Defense Department, the White House. ... People have been at odds, everybody knows it, they'll deny it, but everybody does know. And the fact is that it has created a struggle that has delayed our ability to move forward.

Unlike the Commission, in the above quote Senator Kerry is clearly attempting to lay the blame for the lack of "dot connecting" on the Bush administration - not on the structure of the nation's intelligence apparatus. Senator Kerry's approach certainly deflates any imperative to seek further formal integration of the intelligence services, such as appointment of the grand intelligence chief and other urgent structural reforms suggested by the Report. In Senator Kerry's comment, all that is needed to stop the ongoing war between the State Department, the Defense Department, the White House is to elect him President. That is not at all consistent with what the Report says. It's no wonder that he intones "If I am elected president and there still has not been sufficient progress rapidly in these next months on these issues, then I will lead. From his comments, he expresses no desire to "lead" now - and certainly not to "lead" in the basic direction advocated by this Report.

To say the least, Senator Kerry's response  is well,  more nuanced than the bear hug from the White House.  But then, this Nuancy Boy seems to reserve most of his bear hugs for his cute running mate. Interestingly, as pale as Senator Kerry response to the Report has been, the New York Times reports:

Mr. Kerry's running mate, Senator John Edwards, was more circumspect in his response to the report ... Mr. Edwards praised the "bipartisan nature" of the commission's work, then called on Mr. Bush to act immediately on those recommendations that could be accomplished by executive order, and for Congress to work on the rest. "We had thousands of Americans who lost their lives on Sept. 11,'' Mr. Edwards said, "and it is very important for us, those of us in positions of responsibility, to pay the greatest tribute we can pay to them, which is to take action and reform our intelligence operations."

Essentially none of the Commission's significant recommendations can be effected by Executive Order, and Senator Edwards wants "Congress to work on the rest." He doesn't suggest that Congress actually enact the rest, mind you - or actually enact any of what the Commission wants. Just work on the rest.

And, of course, sometimes Congress just works and works and nothing gets done. I know it's hard to believe, but that sometimes just happens. Jeepers.

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Thursday, July 22, 2004

Just Amazing

After the irresponsible media orgy of accusations against the President regarding the "sixteen words" in his State of the Union address and the whole Plame/Wilson mess, this editorial from the Washington Post is so amazing that I just can't resist reproducing the whole thing - copyright or not.

So sue me.

The Sixteen Words, Again

Wednesday, July 21, 2004; Page A18

REMEMBER THE affair of "the sixteen words"? A year ago this month official Washington was convulsed by a controversy over whether President Bush had knowingly twisted the truth about Iraq to persuade the country to go to war. A former U.S. ambassador, Joseph C. Wilson IV, made that charge. As evidence he cited Mr. Bush's statement in his January 2003 State of the Union address that "the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa," a finding that seemed to support the conclusion that Iraq's nuclear weapons program was active. Mr. Wilson suggested that the White House should have known this was not true, because he himself had traveled to the African state of Niger at the request of the CIA a year before the speech and debunked the intelligence. A few days later, embarrassed by the fact that part of the evidence about Niger was a forgery, the White House said the sentence should not have been included in the president's speech.

Amid the subsequent uproar, we suggested that if Mr. Bush had indeed falsified the case for war, his offense would be a grave one -- but we cautioned that all the facts were not known. We still don't have all those facts -- and some of the investigations of them, unfortunately, will not be completed before the November election. But over the past 10 days two major official reports, by the Senate intelligence committee and a special British commission, have concluded that the claim in the "sixteen words" may, after all, have been justified. Britain's Butler report called it "well-founded"; the bipartisan Senate investigation said the conclusion was a reasonable one at least until October 2002 -- and that Mr. Wilson's report to the CIA had not changed its analysts' assessment.

What is to be learned from these findings? Not necessarily that Mr. Bush and his top aides are innocent of distorting the facts on Iraq. As we have said, we believe the record shows that they sometimes exaggerated intelligence reports that were themselves flawed. A case against Saddam Hussein could have been made without such hyperbole; by indulging in it, the Bush administration damaged its credibility and undermined support for the Iraq mission. But, as both the new reports underlined, no evidence has been presented that intelligence on Iraq was deliberately falsified for political purposes. In the intelligence community, analysts struggled to make sense of fragmentary and inconclusive reports, sometimes drawing varied and shifting conclusions. In the case of Niger, some chose to emphasize the evidence that Iraq explored the possibility of purchasing uranium. Others focused on the seemingly low probability that such a deal had been concluded or could have been carried out without detection.

Mr. Wilson chose to emphasize the latter point, that no deal was likely -- but that does not negate the one Mr. Bush made in his speech, which was that Iraq was looking for bomb material. This suggests another caution: Some of those who now fairly condemn the administration's "slam-dunk" approach to judging the intelligence about Iraq risk making the same error themselves. The failure to find significant stockpiles of chemical or biological weapons or an active nuclear program in Iraq has caused some war opponents to claim that Iraq was never much to worry about. The Niger story indicates otherwise. Like the reporting of postwar weapons investigator David Kay, it suggests that Saddam Hussein never gave up his intention to develop weapons of mass destruction and continued clandestine programs he would have accelerated when U.N. sanctions were lifted. No, the evidence is not conclusive. But neither did President Bush invent it.

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Desperada II

What to make of Jim Fusilli's peculiar defense of Linda Ronstadt in today's OpinionJournal? What to make of a professional writer with a great many strong opinions about popular music, who purports to give us the wisdom he has garnered after seeing about a thousand rock concerts.

"Seeing" concerts? Well, yes. It is a commonplace to note that many rock concerts - apparently including the ones favored by Mr. Fusilli over the years - are designed mostly to be "seen" and not "heard." That is: the music is often not the main point. For many people attending enough of these over-amplified events makes "hearing" any music almost out of the question. The condition is sometimes known as "club disease."

Perhaps that is why Mr. Fusilli chooses his vocabulary as he does. But in that case it is odd that his article seems to argue that one should focus on Ms. Ronstadt's music, music, music. He writes: She doesn't need the kind of publicity the Las Vegas incident provided to drive her career. As a musician, she still has the goods. But Mr. Fusilli is a subtle thinker. Although he is sure that Ms. Ronstadt doesn't need the kind of publicity the Las Vegas incident provided to drive her career, he also writes that It's too early to tell whether this controversy will re-energize Ms. Ronstadt's career. Ah, the inscrutable Wild Occident of Las Vegas!

In any event, is an entertainer mostly concerned about serving the best music! to her audience who gives concerts at which, as Mr. Fusilli puts it, she had to combat not only the noise from a passing elevated subway line and motorcycles roaring toward Coney Island, but a swarm of unidentified bugs? I've heard and enjoyed many outdoor concerts at venues where railroad, traffic, aircraft and other noises were very much part of the performance environment. Those venues include Ravinia and the Hollywood Bowl. But I've never thought such concerts were mostly about the music! Live and learn.

Mr. Fusilli deems Ms. Ronstadt a pop singer extraordinaire - mostly, it seems, because she has sold a lot of records. That is not an insubstantial accomplishment on Ms. Ronstadt's part - and she should be proud of it. But modern recording and amplification technology assure a performer that success need not depend on the quality of one's singing or voice. And Ms. Ronstadt - to her credit - has taken full advantage of such technology. But if pop singer extraordinaire is supposed to mean more than good, lifetime record sales, Ms. Ronstadt cannot be counted in the first rank. To really get a sense of what these modern marvels can do, it's worth watching (and that is the right word) a recording session of someone like Paul Simon, a man with no detectable singing gift whatsoever - but who has commendably sold a very large number of records. Of course, Mr. Simon's records are mostly of songs he has written himself - a claim which Ms. Ronstadt cannot hope to aspire, just in case Mr. Fusilli uses pop singer extraordinaire as having anything to do with the ability to compose a popular song. But Ms. Ronstadt sounds good in her recordings and good enough on stage. Indeed, the ordinary reader would likely be amazed what modern recording and amplification technology can do for the reader's own voice.

But the fact is that Linda Ronstadt has always been notoriously dependent on amplification and heavy engineering to make her musical points. When she is heard unamplified and unengineered the reviews generally have this cast, regardless of whether she is warbling pop or folk or opera

The fault was Ronstadt's. Her voice seemed small and uncertain, and she was unable to move from her strong, rock­belter's low register to her silvery high notes without shifting gears awkwardly in her uncertain middle range, where most of Mimi's singing is done. It seems doubtful that her deficiencies are readily curable.
Mr. Fusilli also oddly associates Ms. Ronstadt with a song canon for which she is not known - a canon of first-rate songs not one of which she has ever made a popular hit:

Mexican songs  ... the great American songbook ... Gershwins' "Someone to Watch Over Me," Billy Strayhorn's "Lush Life" ... Cole Porter's "Get Out of Town"  ... Frank Loesser's "Never Will I Marry."
Yes, Ms. Ronstadt has covered a lot of recording turf over the last several decades. But these are not the songs that made Ms. Ronstadt's career or her pop singer record sales extraordinaire. Her well-known greatest hits were pleasant but distinctly second-rate musical offerings which are still available: here and here and here. As the saying goes, they are liked by their friends. Ms. Ronstadt recognizes her "greatest hits" - it's no accident she dedicated "Desperado" to Mr. Moore, not "Night and Day."

But perhaps wierdest of all is Mr. Fusilli's treatment of Ms. Ronstadt's introduction of her unwelcomed political material as just one more example of how she sprinkles a teensy bit of left-leaning politics onto the tail end of her shows, did so on Saturday night at the Aladdin Casino and Resort in Las Vegas. His implication seems to be that the audience should have known that she would "sprinkle" her politics as she did. Strange, then, that so many of them paid to be offended and claimed they didn't expect to be "sprinkled" at all. Also strange that Aladdin management says they didn't expect to be "sprinkled" by Ms. Ronstadt.

The Aladdin in fact seems to have experienced Ms. Ronstadt's event as a lot more like the shit hitting the fan than a sprinkle.
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Considering The Archivists
Sandy Berger's apparent theft of confidential government documents seems to have been caught by alert and surprisingly clever employees of the National Archives, not agents of the FBI or any other intelligence service. That all seems to have happened in the last quarter of 2003, with the resulting investigation still ongoing.  Who are these archivists who caught the Great Slippery One? I don't know anything about them.

But it is possibly interesting that back in April of this year the President's "sudden" appointment of Allen Weinstein as the Archivist of the United States - replacing John Carlin, who was appointed by Bill Clinton in 1995 - produced quite a kerfuffle for the filling of such an apparently obscure, technical position.  Although he has tendered a resignation latter, John Carlin remains the Archivist of the United States.

Although Professor Weinstein has worked closely with the Senate in the past, there were many paranoid-flavored chatterings on the left about his facilitating "excessive secrecy," the coming release of the Presidential papers of George H. W. Bush (there is a 12 year cooling off period before such release, which is soon ending), even characterizations of this highly qualified and distinguished man as a "Zionist insider" in the thrall of Israel(!), and so on ... and on ... and on. 

Indeed, the resulting kerfuffle was so substantial that one can recall asking one's self at the time: Is somebody stirring this up? Why would anybody do something like that?

Why indeed!

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If Only ... V

Deeper and deeper goes Mr. Berger. The Washington Post reports:

The government source said the Archives employees were deferential toward Berger, given his prominence, but were worried when he returned to view more documents on Oct. 2. They devised a coding system and marked the documents they knew Berger was interested in canvassing, and watched him carefully. They knew he was interested in all the versions of the millennium review, some of which bore handwritten notes from Clinton-era officials who had reviewed them. At one point an Archives employee even handed Berger a coded draft and asked whether he was sure he had seen it.

At the end of the day, Archives employees determined that that draft and all four or five other versions of the millennium memo had disappeared from the files, this source said.

This source and another government official said that archivists gave Berger use of a special room for reviewing the documents. He was examining the documents to recommend to the Bush administration which papers should be released to the commission investigating the Sept. 11, 2001, attacks. Archives spokeswoman Susan Cooper said that employees closely monitor anyone cleared to review classified presidential materials.
If this is true, it's no wonder that the Kerry campaign and Democratic-leaning media representatives have been panicked.

UPDATE: Maybe there's something to be said for the Kausfiles' observation that although the Kerry campaign is saying they didn't know about the Berger investigation until a few days ago, the Big Me says he had better sources but didn't let on to his party's presumptive nominee:

Clinton said he has known about the federal probe of Berger's actions for several months, calling this week's news a "nonstory."

And did Senator Clinton also know and not tell? How big was the Clintonian conspiracy of silence against Senator Kerry? On the other hand, who would still be so foolish as to believe Bill Clinton about anything?

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Wednesday, July 21, 2004

If Only ... IV

Tom Maguire reminds us of one of the many instances in which Sandy Berger has lied about his role in anti-terrorism, seriously and with malicious intent, to the media and Congress.

Maybe it's that reputation and his reported failure to inform them that he was under FBI investigation that has the Kerry campaign operatives so on edge, despite his bland assurances. And maybe that is what has much of the Democratic-biased media bordering on open panic.

Sandy Berger is just asking for their trust, again.
No wonder they're nervous.
Sandy's just asking them to go to battle for him, again.
No wonder they've panicked.
To mix quotations from the Bard's works, Sandy Berger is just asking the Democrats and the liberal media to go once more into the breach for the sake of TIME's fool!
"Come on, boys," the sergeant said, "Do you want to live forever!!"
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There exists a curious, hackneyed ploy used by some fading entertainers to stir up controversy and, they hope, breath a bit of new life into failing careers: (1) The entertainers introduce unadvertised, controversial material - usually of a political and/or sexual nature - into their dated  performances. (2) Some people in the audience raise a fuss. (3) The fading entertainer and his/her supporters fuss back, crying "censorship," "artistic freedom" and the like. The resulting media fuss is supposed to provide the career lift.

Linda Ronstadt is the latest cantante desperada to avail herself of this device - but the trick has been around for many, many years. In fact, the trick has been around for more years even than Linda Ronstadt has been around, and that's a long time - we're talking about someone here who shared a safari tent with Jerry Brown in the 1970's. The Las Vegas Aladdin casino recently fired the plump, pop diva following a concert during which she lovingly dedicated the song "Desperado" to Michael Moore, producer of "Fahrenheit 9/11," causing the room to "erupt" into boos and cheers and making hundreds of angry people stream from the theater, some of them reportedly defacing posters of her in the lobby, writing comments and tossing drinks on her pictures.

The New York Times predictably gets it all wrong:

[Ejecting Ms. Ronstadt] from the premises ... assumes that Ms. Ronstadt had no right to express a political opinion from the stage. It implies - for some members of the audience at least - that there is a philosophical contract that says an artist must entertain an audience only in the ways that audience sees fit. It argues, in fact, that an artist like Ms. Ronstadt does not have the same rights as everyone else.

Perhaps her praise for Mr. Moore, even at the very end of her show, did ruin the performance for some people. They have a right to voice their disapproval - to express their opinion as Ms. Ronstadt expressed hers and to ask for a refund. But if their intemperate behavior began to worry the management, then they were the ones who should have been thrown out and told never to return, not Ms. Ronstadt, who threatened, after all, only to sing.

The Times is utterly wrong because the significant issue raised by Ms. Ronstadt's ploy is consumer protection for the audience - not the right of an artist to freedom of expression. The Aladdin  didn't advertise Ms. Ronstadt's concert as having political content - it was billed as a concert of her old songs,  her "greatest hits." In fact, Ms. Ronstadt took strong issue from the stage even with that  advertising, criticizing it as misleading. She suggested that the Aladdin was therefore remiss for misrepresenting her performance to the audience. But she was much more guilty of misleading her audience and her employer.

In short, it is not the case that her dismissal implies - for some members of the audience at least - that there is a philosophical contract that says an artist must entertain an audience only in the ways that audience sees fit. Rather, it implies - for every member of the audience - that there is a contract that says an artist must entertain an audience only in the ways that the artist and her employer have led the audience to believe will be the case. And that contract is a good thing.

Given the advertising for her show and her own agreement with her employer, those who chose to spend their time and money on Ms. Ronstadt rather than on her competitors on the strip - that is, the audience and the Aladdin - had a perfect right at showtime to expect an aging chanteuse who was never of quite the first rank warble a series of songs not of quite the first rank, interspersed by innocuous, nostalgic banter for the 1970's. Such is the standard nature of the Las Vegas show of the likes of which Ms. Ronstadt has now descended to pay for her mortgage and walking around money, and such was the message the advertising conveyed to her public.

If Ms. Ronstadt had desired to present a political show at the Aladdin she could have informed her employer of that fact. The Aladdin would then have had the opportunity to modify its advertising to note that Ms. Ronstadt would be expressing controversial - even flakey - political views. She chose not to do any of that.

Suppose Ms. Ronstadt had elected to express herself on that same stage by removing her clothing or, to cite another Vegas example, biting the ear off someone she didn't care for. Would any sensible person argue that she was within her rights to present her plump, old, naked body to that audience or that she had her right (like any other pooch) to "one bite" - or that the audience's resulting expression of outrage amounting only to "defacement" of her misleading posters and cat calls was so "intemperate" as to spare the performer all blame or make her less blameful than the audience? Of course not.

Moreover, the Times criticism of the audience is particularly off base since it is well known that Las Vegas audiences are generally drunk. They are supposed to be or get drunk - or nearly so. The casinos make their money by selling them drinks - lots of drinks - and that drink money helps pay Ms. Ronstadt's fee. And she knows all that and so does the Times. To demand as the Times implicitly does that an audience which the casino has deliberately made drunk behave as if they were all soberly sitting in some airless newsroom in mid-town Manhattan is grotesque. Ms. Ronstadt's use of her ploy on an audience she knows perfectly well is largely intoxicated makes her judgment all the worse.

But the Times judgment is even worse.

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Tuesday, July 20, 2004

If Only ... III

More unfounded insinuations, as the Associated Press fusses:
Word of the Berger investigation comes a week before Kerry's convention and two days before the commission releases its report into the Sept. 11 terrorist attacks, which could prove politically damaging for President Bush.

Note that the AP writer doesn't offer a jot of evidence that the final report will prove politically damaging for President Bush. Indeed, most of the Commission's activities and conclusions have already been pretty well vetted in public, so it's hard to see how it's final report is likely to change much of anything. For example, the Commission's final report reportedly won't declare that the September 11 attacks were "preventable" - and whatever that means it doesn't sound too bad for Mr. Bush. But the complete absence of facts and likelihoods seldom stops a frustrated leftish reporter on the make!

Further, the Kerry campaign is saying that Mr. Berger never told them about his problems. If that's true, it's hard to see how Mr. Berger's problem is going to be a major problem for Senator Kerry or a distraction from the convention. But the proximity of the Democratic convention does have the potential of swamping the news of the Berger pilferage - to the extent anyone outside the Beltway is paying attention at this time of year at all. And if the timing of the "word" of the Berger misdeeds is supposed to be keyed to the Democratic convention by nasty but nameless administration operatives, why not drop the "word" during the convention to achieve the maximum distraction from Senator Kerry's big moment? For that matter, there is clearly more than enough evidence to indict Mr. Berger, and any trial at which he might attempt a rebuttal would be held well after the November election. So why didn't the administration sit on the whole story and bring an indictment against Mr. Berger in, say, late October - or in early October to preserve appearances? The administration could always plead "national security" for not saying anything earlier.

Wow! If this is already coming from the AP, I can hardly wait for the paranoid explosion this whole affair is almost certain to produce under the gnomish dome of Herr Doktorprofessor Paul Von Krugman and in the skittery brain of Maureen ("Big Mo") Dowd! Clear the decks!

UPDATE: The New York Times is reporting:

Mr. Berger's mishandling of the documents, which were related to terrorism and which he took from the National Archives in preparation for his testimony before the 9/11 commission, seemed today to become a bigger problem for the Kerry campaign almost by the hour — and at the worst possible time, as Mr. Kerry is hoping to gain a big lift by next week's Democratic National Convention in Boston.

Yes, Senator Gordon Smith, Republican of Oregon, called on the Kerry campaign to "immediately disavow any connection with Sandy Berger" and turn over any documents supplied by Mr. Berger, and that "Right after the documents were taken, John Kerry held a photo op and attacked the president on port security. The documents that were taken may have been utilized for that press conference."

But how could Senator's Smith's suggestion have anything to it if the purloined materials were what Mr. Berger says they were: Copies of drafts still in the record - or not materially diferent from drafts still in the National Archives? The near-panic evident in the Times article (the hyper-partisan David Stout and Mark Glassman are the reporters) seems to go far beyond fear of any consequence just emanating from Mr. Berger's being an informal Kerry campaign advisor. Why the Times reported only days ago that the Kerry campaign circle of advisers has swollen to include unweildy thousands. Justification of the reporters's anxiety seems to all but require that Mr. Berger's description of his own acts and his connection with the Kerry-Edwards campaign are untrue and that the reality is much worse.

Why would Messrs. Stout and Glassman be having such anxieties? After all, a spokesman for the September 11 Commission, Al Felzenberg, says that Mr. Berger's actions would have no effect on the work of the Commission, which Mr. Felzenberg said had had access to all the materials it needed. Could Messrs. Stout and Glassman be worried because Sandy Berger often lies and the truth is often much worse for him than he says? Or could their anxiety be related to the fact that they also report that Mr. Berger's lawyer says it took him a full week to return some of the documents and notes that he eventually did return to the Archives (some have not been returned) after being caught (er, I mean "contacted") by the Archives and/or the FBI?
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Slow Dancin' In The Big City 

One of the more curious aspects of Sandy Berger's self-admitted lifting of classified documents is that the investigation of his acts has been pending since last October, yet government and congressional officials said no decision has been made on whether Berger should face criminal charges.
Really? Eight months is not enough time to make such a decision - or interview the culprit (look what an interview did to Martha Stewart) - or even convene a grand jury that might assist in the investigation? That's pretty slow dancing on the part of a Justice Department that much of the leftish media has been eager to suggest uses federal investigations to intimidate its opponents. Herr Doktorprofessor Paul Von Krugman, for example, is often very keen  to read insidious political intent into the relative speed of investigations, as he did in connection with Richard Clarke's likely perjury before Congress and Paul O'Neill's own retention of government documents: 

Senator Bill Frist's suggestion that Mr. Clarke might be charged with perjury may have been his own idea. But his move reminded everyone of the White House's reaction to revelations by the former Treasury Secretary Paul O'Neill: an immediate investigation into whether he had revealed classified information. The alacrity with which this investigation was opened was, of course, in sharp contrast with the administration's evident lack of interest in finding out who leaked the identity of the C.I.A. operative Valerie Plame to Bob Novak.
Of course, we now know that the administration was quite right not to take the bait by charging out with an aggressive investigation of who leaked the identity of Ms. Plame to Bob Novak, since her husband was lying all along about her involvement with his Niger mission - with her knowledge and aquiescence.

But consider Herr Doktorprofessor's line of reasoning on its own terms. If there is anything to what he writes, isn't the administration's long lassitude in the investigation of the very guilty-looking Mr. Berger suggestive of anything but an inclination to persecute political foes? Indeed, the administration didn't even bring this matter up when Mr. Berger testified before the Senate or the September 11 Commission.
Perhaps the paul Krugman's of the world will want to suggest that the administration held the investigation as a Sword of Damocles over Mr. Berger's head, to pervert his sworn testimony. That would make for an interesting show, since the crime of suborning a person's perjury  is serious, and generally requires that the person actually commit the perjury.
Mr. Berger? Mr. Berger? Are you listening, Mr. Berger?

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What They're Hearing
GOP pollster Bill McInturff presented his thoughts and polls to the Republican Governors Association in the form of a Public Opinion Strategies survey showing more impact on voters from John Kerry's message of middle-class squeeze than from President Bush's message of improved economic performance.

That probably won't last. But some Public Opinion Strategies material is available here, and it's interesting.
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If Only ... II

As the night follows the day, Democratic and media insinuations that the reports of Sandy Berger's theft of classified documents are "politically motivated" have followed those reports:

Former Clinton aide David Gergen, who worked with Berger in the White House, was interviewed on NBC's "Today" show Tuesday and said of Berger's actions, "I think it's more innocent than it looks."  Gergen said Berger was not attempting to remove anything critical of the Clinton administration.  .... "I have known Sandy Berger for a long time," he said. "He would never do anything to compromise the security of the United States."  Gergen also said he found it "suspicious" that news of the investigation should surface just at the Sept. 11 commission is about release its report.
Is stuffing highly classified documents from a secure area in one's socks and then destroying them "more innocent than it looks?" How could it not be?
But what of Mr. Gergen's "suspicious" insinuation? Is the timing "suspicious?" If the reports of Mr. Berger's theft had surfaced at any other time since last October, when the  investigation of Mr. Berger's theft began, there would have been some event or hearing in the immediate future that could have been cited as "suspicious." Senate Committee hearings? September 11 commission hearings? Release of September 11 commission preliminary draft? Release of Senate Committee report? Richard Clarke's book release fuss? Abu Graibe? Iraq government turnover? Various Democratic primaries? Senator Kerry's acknowledgment that Mr. Berger is his campaign advisor?  One could go on and on.
Can the reader think of a substantial period of time since October which has not been at least as politically charged as the present moment? In fact, we are now in the summer dolldrums during which the public is widely regarded as paying no attention whatsoever to political news. Late July and August are generally periods in which politicians try to "dump" information they want to have minimal effect. Further, the conclusions and contents of the final September 11  Commission report have been pretty much know for some time - the final, formal release of that report is hardly a very significant moment. The timing is anything but "suspicious."
Mr. Gergen knows all that. In fact, he was one of the pioneers at exploiting such devices of information release manipulation. But that doesn't stop him from dropping his uninformed insinuations.
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Again, Why Martha?
The Man Without Qualities generally views the case against Martha Stewart as unwarranted, unnecessary and weak  - far too weak to have supported her conviction. Setting aside the jury verdict is another thing entirely. I am suggesting here that a reasonably jury should not have convicted her, not that the jury's decision was reversible and wrong as a matter of law. So Ms. Stewart may be stuck, and that's probably not a "good thing" for anyone - including the American economy and society.   This Wall Street Journal op-ed by George Melloan does a fine job of summarizing the excesses of the Stewart prosecution and putting the whole mess in a larger, wealth-destroying, context.
But it is also worth asking, and not rhetorically: Why Martha Stewart? That is, why did the Justice Department choose to go after this woman so viciously when so many other more serious, high-profile cases against celebrities end much more modestly? (Remember Mr. Gutfreund? He who manipulated much of the entire United States Treasury securities market? He who received a slap on the wrist compared to Ms. Stewart?) This is after all a woman whose life is, whatever her personal faults, an exemplary American success story in many ways. Why her for less than $50K?
Since Ms. Stewart has just been sentenced, and is therefore much in the news, I re-post a possible explanation that appeared here before:

The case against Ms. Stewart is, to my eye, emerging as so weak that again one must ask the question: Why is the Justice Department prosecuting Martha Stewart?I do not mean that question as a rhetorical device or one with an obvious answer ("They shouldn't."). No. I suspect there is more here. Namely, I suspect that the SEC and the Justice Department are aware of many other incidents in which Ms. Stewart is strongly suspected to have committed federal securities crimes - but the authorities can't prove those crimes, either. I suspect this because it is more than passing strange that a brilliant, successful, politically-connected businesswoman such as Ms. Stewart - who is so admirable in so many ways, despite the carpings of her rather obviously envious detractors - should be the focus of such strenuous enforcement efforts for her first offense, especially where that offense netted her so little money and civil and business penalties (loss of her NYSE seat, fall of her own company's stock price, high civil fines, bad publicity, etc) have already been so serious. What's going on?

A similar question was raised by the prosecution and conviction of Wynona Ryder for shoplifting at Saks Fifth Avenue in Beverly Hills. Wouldn't it have been enough for the police to confront her and warn her and for Saks to have made her pay trans-full-retail prices for the stolen merchandise - maybe obtain her contribution of a largish sum to some charity and her agreement to do some community service? All without actually prosecuting or arresting her?

Well, yes - for a first offender. Say what one will about the need to make examples of the successful, the fact is that if the Beverly Hills incident had been her first offense Ms. Ryder probably would not have been prosecuted. Neither Saks nor the district attorney would have wanted that.

But it likely wasn't Ms. Ryder's first offense: Transcripts made public after the trial disclosed that Ryder was suspected of shoplifting from two other high-end department stores in the past, but no charges were filed. Prosecutors were not allowed to present those allegations during the trial. Yes, prosecutors were not allowed to present those allegations during the trial - but those earlier incidents almost certainly affected the exercise of discretion on the part of both the prosecutors and Saks to press forward with charges against Ms. Ryder.

Similarly, my guess is that Ms. Stewart has long inhabited that peculiar Park Avenue demi-monde in which insider stock tips are traded at parties like the names of new hot boutiques. It would be interesting to see the SEC's and DOJ's files on Ms. Stewart. How many past incidents have terminated with a personal belief on the investigator's part that Ms. Stewart broke the law, but with no action other than a memo to files to "watch" her in the future? If Ms. Stewart has such files, it would be a rare member of Congress who would act vigorously on her behalf. In any event, the "watching" has now ended in legal action.

I am not convinced that the above argument completely explains the apparent excesses of the SEC and the Justice Department - even assuming the speculation on which the argument is based is correct. But the argument does help make what seems to be a completely bizarre set of official decisions make at least some, partial sense.

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Monday, July 19, 2004

If Only ...
... the Justice Department has the guts to charge the pathologically lying and hugely destructive Sandy Berger with the federal felonies he almost certainly has committed when he lifted and probably destroyed highly confidential documents.
One can only hope. It seems Mr. Berger removed the highly classified terrorism documents and handwritten notes from a secure reading room during preparations for the Sept. 11 commission hearings.  Mr. Berger's home and office were searched earlier this year by the FBI with warrants after he "voluntarily" returned documents to the National Archives - once National Archives employees told FBI agents that the Archives employees saw Berger place missing documents in his clothing. Some drafts of a sensitive after-action report on the Clinton administration's handling of al-Qaida terror threats during the December 1999 millennium celebration are still missing - and Berger may have lost or destroyed them. That memo was prepared under Mr. Berger's direction by none other than Richard Clarke. Both men have subsequently grossly misrepresented their handling of al-Qaida, especially to the media and also to Congress. Reports are that the Archives is believed to have copies of some - but not all - of the documents believed to have been purloined by Mr. Berger. 
But perhaps the Justice Department is too busy with pressing its pointless, wildly excessive persecution of Martha Stewart to be bothered with prosecuting Mr. Berger's felonies.


Berger and his lawyer said Monday night he knowingly removed the handwritten notes by placing them in his jacket, pants and socks, and also inadvertently took copies of actual classified documents in a leather portfolio.

Yes, yes. Another one of those stories. Many people innocently walk out of secured areas with highly classified documents stuffed in their socks - and then "lose" them. Yep. Happens innocently all the time. Like the girl who got pregnant from swimming in the municipal pool.

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Love and Let Love: The New Richard Epstein, The One From From The University Of Stepford

Richard Epstein, a professor of law at the University of Chicago and a senior fellow of the Hoover Institution, has made many brilliant contributions to legal theory generally and federal constitutional law, in particular. As do his contributions to the importance of property rights and the "takings clause" of the Fifth Amendment, his work has often succeeded by demonstrating that "libertarian" principles widely dismissed as mere recent ahistoric innovations (sometimes from Ayn Rand, God help us!), or internally incoherent, or somehow superseded or simply irrelevant, are, in fact, historically, textually and precedentially grounded, coherent and consistent to the point of necessity, and central to current controversies. But Live and Let Live, Professor Epstein's recent contribution in the Wall Street Journal to the same-sex marriage debate, does not come close to succeeding, except as a cautionary example of how even the most accomplished people can lose their way in this treacherous terrain.

Professor Epstein's huge analytic problems are evident just from the utter absence of the word "child," or any derivative of equivalent of that word, in his entire opus. Yet, the traditional family - and therefore marriage - is entirely constructed from the foundation of accommodating and fostering children. Unlike the version of Professor Epstein manifested in this uncharacteristically shallow effort of his, I do not pretend to have the correct answers to "same sex marriage" questions  - or even to the questions of how "same sex marriage" relates to libertarian principles.
But I do know that those answers are most certainly not going to be forthcoming unless the correct questions are asked and the correct issues are spotted. Questions and issues relating to children have always been an inconvenient element of sex, and they remain as inconvenient for the over-intellectualized libertarian law school professor as they have always been for the over-eroticized high school football quarterback. But any such professor or quarterback who attempts to ignore those questions and issues is in for some very messy surprises a little later in life.
The fact is that marriage is not even close to being a two-person game or contract or institution or anything else on wants to call this sui-generis structure - children make sure of that. And the necessary consideration of those small but inconvenient actors makes Professor Epstein's failure to even mention them in attempting a libertarian analysis more than passing strange, and ultimately as intellectually irrelevant as any analysis that completely ignores the foundation of the institution under consideration.
The failure of Professor Epstein's analysis to recognize that marriage cannot be dealt with meaningfully as a two-party affair is even stranger given the fact that he has been a particularly pointed and eloquent critic of those pseudo-libertarian analyses of abortion rights that fail to acknowledge that at some point the fetus must be considered, and that the resulting third-party considerations change matters completely. For example, Professor Epstein, called [Richard A. Epstein, "Substantive Due Process by Any Other Name: The Abortion Cases," in Philip B. Kurland et al., The Supreme Court Review, 1973, (Chicago: University of Chicago Press, 1974): 184.] the Supreme Court's stand on fetal viability "astonishing," pointing out that Roe v. Wade placed no meaningful barrier against abortion even after viability:

... the Court holds that the state is entitled, but not required, to protect its, the unborn child's, interest. The reason for the entitlement is that the fetus is now capable of an independent life outside the mother. But the problem is, why should not the claims of the fetus [between viability and birth] be sufficiently strong to require, and not merely to permit, the state to intervene for its protection? After the Court expressed such firm views on the proper balance [between the claims of the woman against those of the fetus] until the onset of viability, it gave no explanation why the state must be allowed to make its own choice after that time."

Professor Epstein's old critique of the Court's abortion rulings is clearly correct. Much of the Court's effort to craft a constitutional law of abortion has been utterly incoherent exactly because at some point before birth the "fetus" clearly become one of those inconvenient "children" who render any attempt to approach the matter as an exercise of two-party libertarian principles pointless.

Similarly, any effort - such as Professor Epstein's new one in the Wall Street Journal  - to analyze the institution of marriage while ignoring that its foundations lie in the accommodation of children is also just as doomed to incoherence, simply because any such analysis will necessarily fail to ask the right questions or identify the right issues - or even identify where one might look to find those questions and issues.

And if the reader wanted any further evidence of just how badly off track Professor Epstein has caroomed, it is worth meditating for an entire minute on the following question:

Does the reader really think that the legal prohibition on marriage between a human and a dog has ever had anything whatsoever to do with Professor Epstein's assertion that "people and poodles can't tie the knot because one half in the relationship (some would say the better half) lacks the capacity to enter into a contract"?
That quip may make for a clever joke around the law faculty lunchroom dining table. But it's presence in what Professor Epstein presents in the Wall Street Journal as a serious attempt to apply (or at least to outline an application of) libertarian principles to same-sex marriage is a hideous personal and intellectual embarrassment. Unfortunately, Professor Epstein is correct to include the quip here as a serious observation - exactly because it follows from and exists on precisely the same intellectual level as his entire argument.

Which is sad. And very strange. Sad and strange enough to make one wonder if that's still really Richard Epstein sitting in the elegant Eero Saarinen glass pavilion out on the Chicago Midway - or is it a fancy simulacrum that sounds and looks the same, but without the intellectual combativeness, substance and soul of the original. Perhaps all that was lost in a misquided quest to "live and let live" or "love and let love" in late middle age?

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Separated At Birth ... Or Just At The Lobes?
Maureen Dowd on Teresa Heinz Kerry:
After watching Mrs. Kerry in action at last month's Hollywood fund-raiser featuring Barbra Streisand and other glitteries, when she gave her whispery Out-of-Africa autobiographical riff as the candidate waited patiently, entertainment liberals are nervous about how she will handle her unusual spousal star turn in a prime-time speaking slot at the convention.

Even in a place where everyone is constantly reinventing, people are a little stunned at the way Teresa casts herself as a "third worlder" and "daughter of Africa," a wretched-refuse-of-your-teeming-shore sort of immigrant rather than a "White Mischief" émigré, the daughter of a prosperous Portuguese doctor in colonial Mozambique who met John Heinz when they were studying in Switzerland. When Mrs. Kerry presents herself as an African-American or says, "I'm an immigrant, too," and when her son Chris Heinz says he's looking forward to the day when there is a "first-generation American" in the White House, it doesn't always strike the empathetic chord with Hispanic and black audiences that the campaign hopes for.
Some Hollywood contributors want to censor any Teresa tidbits, including any mention of her nickname among some in the Kerry circle — "the Stepmoney." Others sanguinely say she's showing some improvement, not talking about her first husband as much as she used to.


 The Smoking Gun on Martha Stewart:

In opposing Martha Stewart's bid for leniency, federal prosecutors scoffed at the multimillionaire's claim that her record of community service and charity was so extraordinary that she deserved to be rewarded with less prison time. While Stewart's own presentencing memo was submitted under seal, details from that document are contained in a memo filed by Manhattan federal prosecutors who--gleefully, it seems--pointed to some of the, um, charitable acts claimed by Stewart. The convicted felon, 62, "greeted new neighbors with freshly baked bread" and "gave cocoa to the parents of children appearing on her television show." And then there was the time she "consoled a friend whose father died the same day as the verdict in this case." And who could forget how she complimented staff members at lunch, barbecues, and Passover seders. Also, while visiting Peru, she even "took underprivileged children to Machu Picchu." Prosecutors also termed Stewart's claim that her charitable donations were significant as "specious," pointing to paltry contributions listed on her personal tax returns (though exact numbers were redacted from the government memo, an excerpt of which you'll find below). On a related note, we're waiting to find out the names of those "industry leaders, journalists, and even royalty" who wrote character reference letters on behalf of Stewart and codefendant Peter Bacanovic. Click here to read the strange little letter Stewart herself wrote yesterday to Judge Miriam Cedarbaum. (5 pages)

With respect to Senator Kerry's wife, Big Mo also writes that you never know what the lovely but strange Mrs. Kerry will blurt out. But that's not true at all. We need only look to Martha Stewart - one of Hillary Clinton's best buds and contributors, by the way! - for guidance.  Mrs. Kerry and Ms. Stewart both say the kinds of things ultra-rich, detached, narcissistic people have been saying at least since Marie Antoinette served her own  sweet "tidbits" to all those revolting peasants.

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Partial Awareness
The first signs that the mainstream media are beginning to understand that this election is probably going to be about the domestic economy - not foreign affairs - are beginning to appear.  Not too surprisingly, those signs correspond with a simultaneous dawning of an understanding that this is not good news for the media's favored Democrats and that the higher reaches of the Democratic Party understand that they have a big problem on their hands. The Associated Press breathlessly reports:

Democrats John Kerry and John Edwards are gambling that there is enough lingering uneasiness about pocketbook issues that their message about a struggling economy and loss of jobs will resonate despite rising public optimism. 
"It's the best issue they've got, especially in some of the swing states," said Democratic consultant Dane Strother.

When it comes to voters' anxiety about the economy, this election year is a far cry from 1980, when Ronald Reagan (
news - web sites) famously asked: "Are you better off today than you were four years ago?"

Nor does 2004 measure up to 1992, when Bill Clinton (
news - web sites)'s team summed up the campaign's theme with the memorable phrase: "It's the economy, stupid."

Kerry and Edwards have a bigger selling job than Reagan had in 1980 when he defeated President Carter or Clinton had in 1992 when he beat the first President Bush (
news - web sites).

In June 1980, three-fourths of Americans disapproved of Carter's handling of the economy at a time of rising inflation and little growth.

In June 1992, three-fourths disapproved of the elder Bush's economic performance when the economy was just starting to revive.

An AP-Ipsos poll this month found that voters were about evenly divided about the current president's handling of the economy, with 49 percent approving and 50 percent disapproving. Also, consumer confidence has been on the rise.

Yes, indeed, and that 49-50 split is a November disaster-in-the-making for Democrats. For some reason most of the media - including this AP report - willfully ignore the fact that historically it has taken about six months for consistently good economic news (especially consistently good employment news) to translate into solidly higher support for an incumbent - and that the support for the incumbent tends to accelerate towards the end of that period and closer to election day. Looking back to the point at which consistently and clearly good jobs data began, we see the country is now at about the third or fourth month point in that six-month period. The positive economic news  continues despite the pathetic attempts of those such as Herr Doktorprofessor Paul Von Krugman to spin it otherwise. 
If the economy continues to  perform (never to be taken for granted, but likely at this point) and there is no enormous new development in foreign affairs (including a major foreign terrorist attack on American soil), the glacial and overwhelming progress of the domestic economy on voter perception should put Mr. Bush back in the Whitehouse and the Republicans back in control of Congress by very nice margins.
The smarter Democrats, including Senator Kerry but still a surprisingly small minority of the Democratic Party, know all that. All-but-certain knowledge of their coming serious defeat explains some recent Democratic shenanigans - such as the bizarre attempt to bar Hillary Clinton as a major speaker at their Boston convention and the sharp public counterattack on that attempt launched by Senator Clinton's camp - a public tiff widely seen as driven by Senator Edwards' desire to suppress Senator Clinton's rise.  Such doings make most sense in the context of a general scramble for advantageous positioning by those assuming that the Kerry-Edwards ticket will probably go down hard in November.
What does it say about a candidate like John Kerry when his own convention planning is most consistent with his own coming defeat? Isn't that carrying his policy of trying to have things both ways just a tad too far?

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