Man Without Qualities

Saturday, September 25, 2004

Funhouse Mirror Image II: Updates

A number of readers have noted these suspicions that the French intelligence services are behind the forged Italian documents. Rathergate has more on that point.

And here are some things that Josh Marshall has had to say. [These links thanks to Tim.]


A wonderfully droll e-mail from Michael Pollard of Scrutineer.

Joshua Micah Marshall has already refuted the Telegraph story about Rocco Martino:

Following up on the post below about Rocco Martino, a number of readers have asked about the piece that appeared Sunday about Martino and the Niger business in the Telegraph. The Telegraph piece contains some information that is accurate. But the article also relies heavily on intelligence and law enforcement sources who are using disinformation to cover for Italian intelligence. The thrust of the piece is false.

Well, that settles that!

It certainly does - at least to the evident satisfaction of Mr. Marshall! "Away with the superfluous analysis and evidence," Mr. Marshall seems to cry, "they were just window dressing, anyway!" Not only does Mr. Marshall's post display what he considers "settling" the matter, it also gives a glimpse of what a Sixty Minutes/Joshua Micah Marshall team is really capable of producing!

Bis! Bis!

AND STILL MORE: I don't think e-mailer TM (not Tom Maguire) agrees with Mr. Marshall that the French connection is so easily undone:

I think the Telegraph reporting is spot on - this was a French disinfo campaign all the way. But it's worth noting that, just because the documents are fake, it doesn't mean a sale didn't take place.

I recalled reading Josh Marshall's interview with Joe Wilson back in September '03. It was little noted at the time, but the principal reason Wilson used to pour cold water on the purported uranium sale was that there was no way it could have taken place without the French knowing about it, and they would have told us, wouldn't they? Wouldn't they? Here's the money quote:

WILSON: "... But my point being that even if the two governments (Iraq and Niger) had decided they wanted to do a clandestine transfer of uranium from one country to the other then it would be very difficult to effect without an awful lot of people knowing. Now--

TPM: Particularly the French ...

WILSON: Particularly the French. Of course, the French are going to know every step of the way. This was a French colony. The French had been part of every step of their development over the last 100 years. Even after decolonization in 1960 they were omnipresent. They were the operating partner in the consortium. And whatever you may think of the French, the French have a--nuclear energy is an important component of the French electrical power grid. They need uranium, they need to have a steady source of supply. They need to make sure that they're irreproachable in that, so they can continue to have a steady supply of uranium without running afoul of the IAEA or other international organizations. ... "


It seems to me that this would make for the sort of elegant mind-fucking clandestine operation that would appeal to the French: first, effect an illegal transfer of uranium from Niger to Iraq (in exchange for oil or weapons contracts, of course), then put some blatantly false documents into the pipeline that - on the surface - seem to document such a transfer, but which - when the forgery is finally discovered - actually completely discredit the vary notion such a thing. Very neat, very elegant.

In my opinion, the question of who authored the fraudulent Italian documents exists in curious tension with the claim by the International Atomic Energy Agency (reported in the older Newsweek article) that they were able to determine that the Italian documents were "a crude forgery" within two hours using the Google search engine:
How did they do it? "Google," said the official. The IAEA ran the name of the Niger foreign minister through the Internet search engine and discovered that he was not in office at the time the document was signed.

Has French intelligence really reached the point of not being able to determine when the Niger foreign minister took office? Does one even think that a group of Iraqi exiles, for another hypothetical example that has been tossed around, might make such an easily-verified "mistake?" - even such a group sufficiently sophisticated to pull off the rest of this scam? After all, couldn't whoever forged the documents have accessed Google as Newsweek asserts the IAEA claims it did? For that matter, how reliable is the material on that subject obtained from Google likely to be? Reliable enough so that the IAEA would depend on it in a case like this? Does the IAEA have absolute faith that the date on a Niger government document does not include a typographical error?

Strange it all was, passing strange.

FINAL DISPLACEMENT: CBS has now announced that the displaced item will not air before the election:
CBS News spokeswoman Kelli Edwards would not elaborate on why the timing of the Iraq report was considered inappropriate.

Too bad. So CBS thinks that the timing of the Iraq report was "inappropriate." Could a factor in that decision possibly have something to do with this report in the newer Newsweek article:
The network would “be a laughingstock,” said one source intimately familiar with the story.

Or maybe that's already a lost cause.

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Friday, September 24, 2004

Funhouse Mirror Image

Astute reader Daniel Aronstein draws my attention to a curious Michael Isikoff and Mark Hosenball Newsweek article concerning a Sixty Minute II item that was displaced by the now-infamous fraudulent Killian memo piece, with the displaced item resembling a funhouse mirror image of the displacing story. The displaced item was to have criticized the Bush Administration for its alleged reliance on forged documents - specifically, forged documents provided by Italian sources purporting to show Iraqi efforts to purchase uranium from Niger. I have not seen the displaced item, but Newsweek's description suggests it was to have falsely asserted that Mr. Bush's State of the Union Address relied on the Niger uranium forgeries:

[T]he story, narrated by "60 Minutes" correspondent Ed Bradley, asked tough questions about how the White House came to embrace the fraudulent documents and why administration officials chose to include a 16-word reference to the questionable uranium purchase in President Bush's 2003 State of the Union speech.

Of course, what Mr. Bush said in his address - the famous "16 Words" - was this:

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

That's it. He made no mention of Niger or of the forged documents. And, as noted below, British intelligence did not rely on the forged documents, either. The authors of this Newsweek article and Sixty Minutes II knew perfectly well that the State of the Union Address relied on British intelligence reports that have since been further substantiated, and not on forged documents regarding Niger uranium to which the displaced Sixty Minute II item was to assign so much significance, because one of those authors - Mr. Issikoff - wrote in a prior Newsweek article:

Tenet did have qualms about using the Niger information in a presidential speech. The DCI warned deputy national-security adviser Steve Hadley not to include a reference to Niger in a speech delivered by President Bush on Oct. 7 in Cincinnati. But according to a top CIA official, another member of the NSC staff, Bob Joseph, wanted to include a mention of Iraqi efforts to buy uranium from Niger in the president's State of the Union speech. According to this CIA official, an agency analyst cautioned him not to include the Niger reference. The NSC man asked if it would be all right to cite a British intelligence report that the Iraqis were trying to buy uranium from several African countries. The CIA official acquiesced. Though the British have not backed off that claim (a British official told NEWSWEEK that it came from an East African nation, not Niger), CIA Director Tenet publicly took responsibility for allowing a thinly sourced report by another country to appear in the State of the Union. (The White House last week denied that the Niger reference had ever shown up in an SOTU draft.) What Bush said in his address: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."

It wasn't until February, several days after the State of the Union, that the CIA finally obtained the Italian documents (from the State Department, whose warnings that the intelligence on Niger was "highly dubious" seem to have gone unheeded by the White House and unread by Bush).

Since neither British intelligence nor Mr. Bush's State of the Union Address relied on the forged documents, what possible legitimate significance could the displaced Sixty Minutes II item have assigned to them?

The later Newsweek article says:

[T]he Italian journalist... [obtained] the potentially explosive documents in early October 2002 - just as Congress was debating whether to authorize President Bush to wage war against Iraq. The documents, consisting of telexes, letters and contracts, purported to show that Iraq had negotiated an agreement to purchase 500 tons of yellowcake uranium from Niger, material that could be used to make a nuclear bomb. ... [The Italian journalist] then provided the documents to the U.S. Embassy in Rome in an effort to authenticate them. The embassy soon passed the material on to Washington where some Bush administration officials viewed it as hard evidence to support its case that Saddam Hussein's regime was actively engaged in a program to assemble nuclear weapons. But the Niger component of the White House case for war quickly imploded. Asked for evidence to support President Bush's contention in his State of the Union speech that Iraq was seeking uranium from Africa, the administration turned over the Niger documents to the International Atomic Energy Agency. Within two hours, using the Google search engine, IAEA officials in Vienna determined the documents to be a crude forgery.

This is an odd grab bag of "significance" and "reliance." Did Congress rely on the Italian documents? Newsweek suggests that the displaced Sixty Minutes II item makes that connection by noting that the documents materialized "just as Congress was debating." But there is no indication that anyone in Congress ever relied on or even saw these documents. As Daniel Aronstein points out, the State of the Union address was given January 28, 2003, months after Congress voted to authorized the use of force against Saddam (October 10th in the House and on the 11th in the Senate in 2002). Since not even the CIA had received the forged Italian documents until February 2003, it seems highly unlikely that Congress relied on them.

Then there is the observation that some Bush administration officials viewed it as hard evidence. It's difficult to take an assertion about nameless "officials" seriously under the best of circumstances, but it is unlikely any such official's "belief" endured long enough for him or her to have relied on it, since we have the old Isikoff Newsweek article reporting:

It wasn't until February, several days after the State of the Union, that the CIA finally obtained the Italian documents (from the State Department, whose warnings that the intelligence on Niger was "highly dubious" seem to have gone unheeded by the White House and unread by Bush). At the same time, the State Department turned over the Italian documents to the International Atomic Energy Agency, which had been pressing the United States to back up its claims about Iraq's nuclear program. "Within two hours they figured out they were forgeries," one IAEA official told NEWSWEEK. How did they do it? "Google," said the official.

Since the State Department gave the documents to the CIA and the White House with a warning that they were "highly dubious," isn't it likely that the State Department gave the same warning to the IAEA? Wouldn't that help explain why the IAEA started "Googling" the documents within two hours of receiving them? There seems to have been no demonstration of reliance by the State Department or the IAEA or any Bush Administration at this juncture.

So why would Sixty Minutes want to run a half-baked story like this, apparently full of many false and highly misleading suggestions (from the Newsweek account)? Well, in the case of the displacing story CBS and others are now suggesting that a big problem was that Mary Mapes, its producer, was just so partisan and liberal that it obscured her journalistic judgment. Similarly, perhaps one might want to take a look at the political agendas of some of the creators of the displaced item:

"This is like living in a Kafka novel, said Joshua Micah Marshall, a Washington Monthly contributing writer and a Web blogger who had been collaborating with 60 Minutes producers on the uranium story. "Here we had a very important, well-reported story about forged documents that helped lead the country to war. And then it gets bumped by another story that relied on forged documents."

CBS News is "collaborating" with Josh Marshall to create Sixty Minute items. Isn't that nice. Given Mr. Marshall's comment above, his many personal agendas and his known degree of ability to maintain political objectivity, perhaps CBS News was actually fortunate that Mr. Marshall's item was displaced by that of Ms. Mapes.

Now that Mary Mapes is to be disintegrated for perpetrating a disastrous story from the depths of her uncontrolled hyper-partisan agenda there should be an opening for a permanent news producer on Sixty Minutes II. Maybe Mr. Marshall can fill that slot as a kind of funhouse mirror image of Mary Mapes? In fact, if Mr. Rather has to go, too, there might be an even bigger opportunity here for Mr. Marshall. Talk about funhouses!


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Thursday, September 23, 2004

Mr. Burkett Regrets

From the Star-Telegram:

Burkett said he thinks that CBS and anchor Dan Rather have tried to make him the "fall guy" in the dispute. He said Rather interviewed him for 3 ½ hours last week but used only portions of the tape that made Burkett look bad.

He also said that "CBS duped me" by identifying him as the source of the documents.

"Dan Rather ruined me in front of 70 million people," Burkett said.
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Believing Mr. Zogby

According to the Zogby Poll [Zogby/WSJ** 8/30-9/3], which for some reason the Wall Street Journal has been featuring regularly, John Kerry trails George Bush by a scant 1.7% in Arkansas and actually leads by .4% in Missouri.

Yet Kerry-Edwards doesn't seem to believe Arkansas or Missouri is even worth an ad:

Bowing to political realities, Democratic presidential candidate John Kerry has canceled plans to begin broadcasting television commercials in Arizona, Arkansas, Louisiana and the perennial battleground of Missouri.

That decision seems to provide some insight into how serious professionals who actually have to ration campaign resources view Mr. Zogby's state-by-state polling.

These state-by-state polls are internet based polls (Zogby also conducts other polls by telephone). Salon has this to say about the Zogby Internet polls:

The Zogby Interactive Battleground Poll -- regularly cited in the blogosphere and published on the Wall Street Journal's Web site -- is an online poll conducted via e-mail. If this sounds dubious, that's because it is. Online polling has a spotty track record and remains an unproven method for gauging public opinion.

[Salon cite and quote thanks to RealClear

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More Republican Dirty Tricks

The Man Without Qualities has already deplored Bush-Cheney's obvious placement of one of their henchmen as a mole at the very top of the Kerry-Edwards campaign apparatus:
The Washington Post reports: ... [I]n 1984, Kerry proposed eliminating a series of weapons systems... Kerry told the Boston Globe last year that some of those proposals [of Kerry's] were "ill-advised, and I think some of them are stupid" How dare Senator Kerry impugn his own patriotism and challenge his own military record this way! ... Clearly this Bush henchman, Kerry, is trying to obscure matters with incomprehensible and inconsistent answers that make him look weak on national security... [N]ote how Senator Kerry slyly restricts himself to listing some of the defense systems he considers "ill-advised" - but he doesn't even try to list which of his own proposals to eliminate defense systems are "stupid." As Senator Kerry points out, such willful vagueness is the clear mark of the trained Bush henchman! ... The Bush campaign has clearly planted a mole at the very top of the Kerry organization! That's the game that they play - and it isn't pretty.

Now Chicago Tribune columnist Steve Chapman is on the case with additional evidence - an "authenticated" memorandum, of course. Yes, it's a real noir story of corruption at the top and the willingness of some political operatives to claw their way up at any price:

To: John Kerry, Republican mole

From: Karl Rove, White House political adviser ....

[T]the Democrats ... naivete is almost touchingly childlike. You'd think they'd never heard of Richard Nixon or dirty tricks.

But in all seriousness, let's review some of the tactics we've implemented. They fall into the following categories:

Making Michael Dukakis look good. ... [Y]ou outdid him when you put on an anti-contamination suit to tour the space shuttle orbiter. You looked like one of those sausages that race around the field at the Milwaukee Brewers' home games....

Those windsurfing suits are almost as bad, so put them on any chance you get. ...

[Y]ou've cleverly "bungled" every opportunity to show your sports savvy. You went to Michigan and said, "There is nothing better than Buckeye football." When someone mentioned stock-car racing, you asked, "Who among us does not love NASCAR?" You said your favorite Red Sox player of all time was Eddie Yost, who never played for Boston. Maybe I'm overoptimistic, but that last one might even put Massachusetts in play this year.

Those remarks were scripted by our crack staff, of course, but they didn't equal your brilliant ad lib when you showed up in Green Bay and made a reference to the Packers' "Lambert Field"--when everyone this side of Paris know it's "Lambeau." ...

It was shrewd to equip you with a fabulously wealthy wife who speaks with a foreign accent, but Teresa has expanded the role far beyond my fondest hopes. ... [B]lack voters ... would rather eat dirt than vote Republican. But for a rich white lady to proclaim herself "African-American" might cause them to reconsider. ... I loved that remark about the hurricane victims in the Caribbean needing food and electricity more than clothing: "Let them go naked for a while, at least the kids." ...

Honestly, who could have imagined one U.S. senator could come up with a different position for every day of the week? At this point, I doubt God himself could figure out what you really think about Iraq.

Read the whole sordid thing. Raymond Chandler couldn't have invented anything more fetid. Makes you weap for the fate of the Republic that this kind of thing goes on.

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Wednesday, September 22, 2004

Hillary, Dillary, Doc

The Man Without Qualities has sometimes suggested that the recent woes of the Walt Disney Company may be attributable to Michael Eisner's becoming a "pump head" following his emergency cardiac bypass surgery. Now Bill Clinton has joined Mr. Eisner as a quadruple emergency bypass patient - and prospective pump head.

While there is no guaranty that Mr. Clinton will be afflicted, the chances appear to be high that he may become what cardiologists call "a pump head." A Duke University study appearing in the New England Journal of Medicine in February, 2001, found that a substantial proportion of patients after coronary artery bypass surgery experience measurable impairment in their mental capabilities. Surgeons privately know this effect as "pump head." In the study, patients were tested for their cognitive capacity (i.e. mental ability) before surgery, six weeks, six months, and five years after bypass surgery. Patients were deemed to have significant impairment if they had a 20% decrease in test scores. This study had three major findings1) Cognitive impairment occurs after bypass surgery. 2) 42% of patients became impaired.3) The impairment was not temporary.

Also, the decline in mental capacity in those who had bypass surgery was 2 -3 times higher over five years than in patients who did not have surgery.

"Pump head' is not the same thing as depression - although the symptoms are similar. Earlier studies had indicated that cardiac bypass surgery does not cause true depression.Similarly, experts such as Guy McKhann, M.D., director of the Mind-Brain Institute, say that "Research has shown that anywhere from 25 to 80 percent of cardiac surgery patients experience postoperative declines in their mental abilities--problems with memory, verbal skills or physical coordination."

The mysterious cause of "pump head" may have been found! Specifically, a report by Duke University Medical Center claims that gastrointestinal bacteria are the culprit for cognitive impairment following bypass surgery. Bypass surgery requires use of a heart-lung machine. Gut bacteria release endo-toxins that cause an increase in inflammatory response associated with the heart-lung machine which leads to greater cognitive dysfunction.

So, as noted in a prior post, it comes to this: Bacteria intended by nature to influence only the processes that result in the production of human feces may be having a profound effect on the products of Michael Eisner's brain - and now on Bill Clinton's brain, and, through it, Hillary's 2008 Presidential race. That's because Senator Clinton is widely believed to be counting on her husband to be her chief campaign advisor in that run. But sometimes things just don't work out quite the way we want or expect.
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Mary Mapes, R.I.P II: Dead Again

They're coming for you, Mary.

UPDATE: Mary, they're pulling up to your front door right now. [From Kausfiles]
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Surely You Jest, Mr. Safire! II: Getting To First With Professor Volokhyrie

What the heck was Brunhilda ("Eugene") Volokhyrie thinking when he wrote:

The Court has generally suggested that knowing falsehoods lack constitutional value, and thus can be punished. Knowing falsehoods about the government, however, seem to be categorically protected even though they're deliberate lies (see New York Times v. Sullivan)... On the other hand, courts have upheld the Ohio bans on knowingly false statements in election campaigns, see, e.g., State v. Davis, 27 Ohio App.3d 65 (1985); Briggs v. Ohio Elections Com'n, 61 F.3d 487, 494 (6th Cir. 1995). And this false statement [that is, the forged Killian memos] seems to be a false statement about a particular person (whether or not it's actually libelous), which would make it pretty clearly unprotected both under the libel cases (e.g., New York Times v. Sullivan) and the false light cases (e.g., Time v. Hill). Under normal tort law rules, the statement might or might not be actionable; but I think that the First Amendment doesn't impose any constitutional barrier to punishing it.

So the First Amendment does not prevent Congress from declaring that, say, Herr Doktorprofessor is guilty of a federal felony if he writes and disseminates a deliberately fraudulent column arguing that President George Bush, personally, is in express cahoots with yet another interplanetary conspiracy of upper-income space aliens bent on stealing every last cent from the American underclass? Does Herr Doktorprofessor's only constitutional protection come from the Eighth Amendment's prohibition on cruel and unusual punishment and excessive fines? Isn't there anything in the mere statement of the hypothetical that ought to set off some First Amendment alarms?

Is it true that The Court has generally suggested that knowing falsehoods lack constitutional value? This despite New York Times v Sullivan:

[D]ebate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth--whether administered by judges, juries, or administrative officials.

With all due respect to Professor Volokhyrie, he's on a pretty wild ride here - and his little "on the other hand" cite ("at least one state court has struck down a general ban on knowingly false statements in election campaigns, theorizing that the First Amendment exception isn't for lies generally, but only for specific kinds of lies, such as libel, fraud, perjury, and the like") doesn't stabilize his descent. Few activities are closer to the core of the First Amendment than a candidate's right to lie deliberately and with malice about an opponent in a race for public office. The government would have to come up with a huge and extremely narrow compelling government interest to overcome that right. Such interests exist sometimes, but not generally, and we are not talking perjury here.

How about criminalizing any Presidential candidate's knowingly false statement that unlike the candidate's own program an opponent's proposals will fail to balance the budget? How about a candidate's knowingly false statement that the other candidate, if elected, will expose the country to greater risk of terrorist attack? Or a knowingly false statement that one's opponent has a "secret plan" to reinstate the military draft? Why should the policy of gutting the First Amendment stop with false statements about the other candidate? Is Congress permitted to criminalize a candidate's (or President's) knowingly false assertion that he will make (or has made) abortion safe, legal and rare? Why not just declare that the First Amendment allows Congress to have every politician arrested and imprisoned in advance and be done with it?

We are invited from the comfortable precincts of West Los Angeles to forget the fact that in the early 19th Century much political "dialogue" in this country took the form of scurrilous newspaper libel directed against political opponents - such as Thomas Jefferson - by newspapers functioning as mere organs of political parties and "factions." We are also to forget that the First Amendment was specifically passed to prohibit outrages like the 1735 trial of John Peter Zenger - who was tried for seditious libel in New York. Zenger was the publisher of the New York Weekly Journal who published articles specifically and personally accusing Governor William Cosby of dishonesty and oppression. Forget the fact that both Jefferson and Madison considered the First Amendment to squarely prohibit the Sedition Act, which made it a crime, for example, to publish any "false, scandalous and malicious" writing against the President "with intent to defame" him or bring him "into contempt or disrepute" (Jefferson's tolerance of state actions is irrelevant, since the First Amendment didn't then apply to them). All of that constitutional history - and so much more - goes down the Volokhyrian memory hole into amorphous doubt, apparently because some fatuous judges on the Sixth Circuit wrote a few silly pages upholding a nutty Ohio law?

As Zenger, Jefferson, Madison and many others knew, criminal sanctions are different. In allowing civil damages the Court has relied on the basic observation that if the courts can't right libelous wrongs the offended individuals will take matters violently into their own hands. But in a general political context the surrogate for violence (civil war) is elections - not state sanctioned punishment. It's true that the Supreme Court once upheld a criminal libel statute - but only where violence might have ensued. Sullivan made short work of that precedent:

In Beauharnais v. Illinois, 343 U.S. 250, the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and "liable to cause violence and disorder." But the Court was careful to note that it "retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"; for "public men, are, as it were, public property," and "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." Id., at 263-264, and n. 18. In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the Court was equally divided and the question was not decided.

Professor Volokh is just flat wrong to focus on whether there is a case directly on point here. There is no such case. All that means is that the work of a junior-level clerk or legal associate is done. The real work of applying the history and principles of the First Amendment then begins. But it is just fatuous then to conclude that I think that the First Amendment doesn't impose any constitutional barrier to punishing false campaign statements like the fake Killian memos.

God help us all if he's right.

POSTSCRIPT: New York Times v Sullivan does permit awards of punitive (or "exemplary) damages, which are intended to "punish," against a defamer who proceeded with "actual malice." But Browning-Ferris Industries V. Kelco Disposal quite rightly rejected any equation of criminal punishment sought by the government and punitive damages awarded to a private litigant, at least under the Eighth Amendment. (Kelco accepted the equation where the punitive damages are awarded to the government.) Kelco's analysis distinguishing the "punishment" of private punitive damage awards from the "punishment" of criminal penalties should give serious pause to anyone attempting to analogise between them in the defamation arena.
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Surely You Jest, Mr. Safire!

In what might be a truly alarming column were it not (apparently) tongue in cheek, William Safire today opens with a quote from U.S. Criminal Code, Chapter 63, Section 1343 (wire and mail fraud) and suggests that the author and/or knowing disseminators of the forged Killian memos might well be guilty of federal felony under the quoted statute:

At the root of what is today treated as an embarrassing blunder by duped CBS journalists may turn out to be a felony by its faithless sources. Some person or persons conceived a scheme to create a series of false Texas Air National Guard documents and append a photocopied signature to one of them. The perpetrator then helped cause the fraudulent file to be transmitted by means of television communication to millions of voters for the purpose of influencing a federal election.

Whoever forged those documents is not a nice person and the political and career and reputational consequences to anyone involved in perpetrating this fraud should be severe. But, for example, Herr Doktorprofessor Paul Von Krugman commits a deliberate fraud in his column about twice a week with the specific intent that the fraudulent file (column) be transmitted by means of communication covered by the wire fraud statute (including the internet) to millions of voters for the purpose of perverting federal elections. So what? Does that mean the office down the hall from Mr. Safire's should be cleared out while its current gnomishishly-handsome occupant spends some time in Leavenworth? I hope not! And, of course, many people would passionately maintain that Mr. Safire is in the same business as Herr Doktorprofessor - and was in the business even deeper as a professional mind bender working for Richard Nixon.

It's not a crime under the federal wire fraud statute merely to disseminate even the worst fraudulent material - including the New York Times and other Big Mainstream Media - with the purpose of corruptly influencing a federal or other election, as the Department of Justice Criminal Resource Manual makes clear:

In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that the mail fraud statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government" . . . and that the statute is "limited in scope to the protection of property rights." See Carpenter v. United States, 484 U.S. 19, 25 (1987) (quoting McNally and extending it to wire fraud statute); see also Evans v. United States, 504 U.S. 255, 292 (1992) ("[I]n McNally . . . we rejected the Government's contention that the federal mail fraud statute . . . protected the citizenry's 'intangible right' to good government . . . . ") (Thomas, J., dissenting).

In response to McNally, Congress passed Section 1346 of Title 18, United States Code, which provides that "For the purposes of this Chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

Section 1346, which became effective November 18, 1988, seemed to resolve the intangible rights issue. See Madeoy, 912 F.2d 1486, 1492 (D.C. Cir. 1990) ("McNally has been overruled by legislation."), cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991); cf. United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989) (ex post facto concerns bar the application of section 1346 to pre-1988 conduct). In United States v. Brumley, 79 F.3d 1430, 1440 (5th Cir. 1996), petition for rehearing en banc pending, however, the court concluded that the wording of § 1346, "simply does not effect a change in the portion of the McNally opinion which held that the mail fraud statute does not reach 'schemes to defraud citizens of their intangible rights to honest and impartial government.'"

As an aside, the "tangible/intangible" distinction is a distration which is not worth the bother in this case - the inapplicability of the federal mail and wire fraud laws to election rights does not turn on that distinction.

Of course, it is possible to transgress the mail and wire fraud statutes in the process of "corrupting" an election - and the Justice Department has guidelines for those instances, too. And there may be other federal criminal laws that turn on some aspect of the perpetrator's act other than its mere substantive fraudulence that were breached here, including (perhaps) this one that turns on impersonating an official:

United States Code, Title 18, Section 912: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both

Maybe such statutes apply, but I wouldn't bank on it. It's very hard to criminalize political activity - and that's a really, really good thing.

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Tuesday, September 21, 2004

Just A Few More Questions, Mr. Burkett

Dan Rather's interview of Bill Burkett appears a textbook case of a reporter not asking the tough follow-up questions because he just doesn't want to know. Here are a few questions that Mr. Rather did not ask:

1. Mr. Burkett, you have now identified as your source of the questioned Killian Memos a certain "Luci Ramirez." What is your understanding of how Ms. Ramirez came to possess those documents? Do you know or have as knowledge of what her source was?

2. Do you know or have any idea of when Mr. Ramirez obtained her copies of the document?

3. How do you know Ms. Ramirez? What is the nature of your relationship with her? Why did she trust you in this matter? When was the last time you had contact with her?

4. Do you know or have any idea whether Ms. Ramirez is a Democratic Party activist, or has any contacts in the Kerry-Edwards campaign or the DNC?

5. Why did you agree to waive your confidentiality agreement with CBS at this point? Why have you now identified Ms. Ramirez to the world when you promised her you would not and when you wouldn't do so previously? Did Ms. Ramirez agree to that?

etc., etc., etc., ...

Just asking!

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Monday, September 20, 2004


In a prior post The Man Without Qualities has suggested that Mr. Burkett was a conduit for the forged "Killian memos" between Democratic operatives, probably associated with the DNC and/or Kerry-Edwards, and CBS News. Now CBS News and Burkett are coordinating a story that, in fact, CBS News was a conduit introducing Burkett to Kerry-Edwards and the DNC, according to USA Today:

Burkett told USA TODAY that he had agreed to turn over the documents to CBS if the network would arrange a conversation with the Kerry campaign. The network's effort to place Burkett in contact with a top Democratic official raises ethical questions about CBS' handling of material potentially damaging to the Republican president in the midst of an election. This "poses a real danger to the potential credibility ... of a news organization," said Aly Colón, a news ethicist at The Poynter Institute for Media Studies.

"At Burkett's request, we gave his (telephone) number to the campaign," said Betsy West, senior CBS News vice president.

CBS would not discuss the propriety of the network serving as a conduit between Burkett and the Kerry campaign. "It was not part of any deal" to obtain the documents, West said, declining to elaborate.

The petty differences in their versions (CBS says the introduction was not a condition to delivery of the documents, but Burkett says it was) is hardly worth mentioning - of course CBS would say such a thing. They're coordinating their stories. Why would Mr. Burkett have needed an introduction to Kerry-Edwards at that time? According to USA Today:

Burkett said his interest in contacting the campaign was to offer advice in responding to Republican criticisms about Kerry's Vietnam service. It had nothing to do with the documents, he said. "My interest was to get the attention of the national (campaign) to defend against the ... attacks," Burkett said, adding that he also talked to former Georgia senator Max Cleland and Democratic presidential candidate Howard Dean during the past 45 days. "Neither the Democratic Party or the Kerry campaign had anything to do with the documents," he said.

Really? What, specifically, did he want to add that he thought would have been valuable? There is no report that Mr. Burkett has any special knowledge of what happened to Senator Kerry in 1968.

Mr. Burkett's supposed desire to bloviate about something he knew little about would have come at a high cost to him if CBS had acted with ordinary journalistic ethics and turned down his demand. Indeed, Mr. Burkett already had CBS News ready, willing and able to go with his smear. If he did, in fact, demand that CBS News do such introductions as a condition to providing his documents to the network, he would thereby have seriously reduced the chances of his documents getting used and his smear getting spread. What did Mr. Lockhart and Kerry-Edwards in fact, do for or with Mr. Burkett? What did he and Mr. Lockhart actually discuss? Again, according to USA Today: Lockhart said the conversation lasted just a few minutes. ... At the end of the conversation, Lockhart said he thanked Burkett for his interest, and there was no further contact with him. For that Mr. Burlett supposedly put at serious risk his whole multi-year project to get his forged documents and his Bush-Guard smear out through CBS News - even at the very moment it was otherwise assured success? I don't think so.

This coordinated CBS-Burkett story just doesn't make a whole lot of sense on the known facts. In fact, it seems more like another joint fraud.

MORE: USA Today now confirms that Mr. Burkett has always presented himself as a "conduit" for the forged documents - although the original source is still very much unclear. As noted in my prior post, that "conduit" status would explain why CBS (and USA Today) have had such a hard time disclosing Mr. Burkett's identity even after the documents' were revealed as fakes. Here's the USA Today story:

In interviews in recent days with USA TODAY, both in person and on the phone, Burkett said he had merely been a conduit for the records purported to be from the private files of Lt. Col. Jerry Killian, one of Bush's former Guard commanders, who died in 1984. Burkett admitted lying to USA TODAY about the source of the documents but said he did not fabricate the papers.

In earlier conversations with USA TODAY, Burkett had identified the source of the documents as George Conn, a former Texas National Guard colleague who works for the U.S. Army in Europe. Burkett now says he made up the story about Conn's involvement to divert attention from himself and the woman he now says provided him with the documents. He told USA TODAY that he also lied to CBS.

Burkett now maintains that the source of the papers was Lucy Ramirez, who he says phoned him from Houston in March to offer the documents. USA TODAY has been unable to locate Ramirez. When Burkett gave copies of the documents to USA TODAY, it was on the understanding that his identity would not be disclosed. USA TODAY honored that agreement until Burkett waived his confidentiality Monday.

My guess is that whoever "Ramirez" is, the author of these documents is probably not Mr. Burkett, but some Democratic operative with strong ties to Kerry-Edwards and the DNC who may have created the documents based on Mr. Burkett's oral "information." I also suspect that the author was chosen by Kerry-Edwards or the DNC with enough distance to provide for "plausible deniability" on the part of the candidate and Terry McAuliffe.

Was there a written confidentiality agreement? If so, where is it? If not, who can say exactly what its terms were? Did it specifically disclaim all warranties as to the authenticity of the documents? I'll bet it did. What "conduit" warranties the substance of that which is merely conducted!? This is the kind of thing fancy lawyers - not retired, disgruntled Army officers - are paid the big bucks to think about.
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Rather Embarrassing, To Say The Least

This video of Dan Rather being "interviewed" by intellectually supine CBS News reporter Marcia Kramer, who through the interview communicates nothing so consistently as her awareness that he could have her fired in a moment, is almost unwatchable (they call each other "Dan" and "Marcia," just for cozy openers). But force yourself: the cumulative effect of Mr. Rather's disassociations and his "interviewer's" obvious terror of the man is nothing short of awesome. Among other things, Mr. Rather says he doesn't think Mr. Burkett has ties to the Kerry-Edwards campaign or the DNC, that he doesn't think that the credibility of CBS News has been compromised by this incident, and that the incident just reflects a failure of CBS News to check every "detail" to the extent they normally do. Sure, Dan, details, details - this is all about "details." Mr. Rather also says that he has learned as a reporter "to trust people." He says, preposterously, that he "welcomes" the "independent" investigation that CBS News is mounting. There is so much more. He literally sounds as though he could be in the early-to-intermediate stages Alzheimer's disease.

And speaking of CBS News representatives in the grip of senile dementia - is it possible that CBS will ask Walter Cronkite to return from his dotage (I mean "retirement," of course) to head the "independent" investigation of this mess. Shame on the reader! I know what you're thinking, but he isn't physically dead, yet. That would be just their style! Maybe the CBS suits could rig Mr. Cronkite up as a kind of sock puppet?
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Culture Clash

A New Yorker magazine article notes:

One of the lucky charms that [Teresa Heinz Kerry] wears on a necklace (another is a four-leaf clover that Kerry gave her one Valentine’s Day) is a religious medal that her dying mother received from her confessor.

John Kerry gave his wife a four leaf clover on Saint Valentine’s Day?! A man who spent decades impersonating an Irishman still can't figure out that it's called a shamrock ("seamrog," Irish for "little clover") and that you give them on Saint Patrick's Day? You give your sweety little heart-shaped things on Saint Valentine's Day, Senator.

One can just imagine him scribing the gift card that way, too:

Dear Tere - Here's a nice little Saint Valentine's four leaf clover for your charm necklace! - Your Jonhny-pooh.

Can we talk? I mean, privately? Is the man some kind of exotic well-feathered idiot? Speak freely, I promise I won't tell. Heck, he probably saved it up and gave it to her in Lambert Field.

Of course, Saint Patrick's shamrock has three leaves - not four - and is said (dubiously) to have been used by the Saint to explain the the idea of the Christian Trinity – that in the one God there are three divine beings: the Father, the Son and the Holy Spirit. Nothing in any of that has ever stopped the Irish or Fibonacci (who, of course, is Irish on Saint Patrick's Day) from considering the four-leafed variety to be the especially lucky ones. Three leafed clovers were also sacred to the pre-Christian Irish Triple Goddess, such as Brighid (later reconstituted as a Catholic saint). The lucky four leafed clover was symbolic of the wheel of the seasons. Some say that the four leaves can represent Hope, Faith, Love and Luck. White four leaf clovers were thought to drive off ill-intent. Sure and begorah, Senator! Top o' th' mornin' to ya!


And now this:

Less than two years after voting to give Bush authority to invade Iraq, the Democratic candidate said ... "Saddam Hussein was a brutal dictator who deserves his own special place in hell," he added. "But that was not, in itself, a reason to go to war. The satisfaction we take in his downfall does not hide this fact: We have traded a dictator for a chaos that has left America less secure."
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Mary Mapes, R.I.P.

In the latest unexpected development in the Rather-Killian memo meltdown, CBS News revealed today that Mary Mapes had gone to Mr. Rather's hotel room at his invitation for what she had thought would be an enjoyable evening. But the overstimulated male celebrity insisted that she bend over a chair and started to get really rough ....

No, no, no! That's the Kobe Bryant story! I'd better watch out or I might get as confused and ditzy as CBS News.

Of course, in its own way the real story of what Mr. Rather has in store for Mary Mapes (worked out with the CBS suits) when he finally does summon her to his room is even worse than what the much-better-looking Mr. Bryant had in mind for his evening visitor, as Ellisblog explains.
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Big Media Rot In Action II: "Independence" Day

Now CBS has Rather's statement, too, along with an evasive CBS Statement and a largely-stonewalling story that, embarrassingly for CBS, continues to cite Mr. Barnes as a "respectable" source and without mentioning that his own daughter has called him a liar and many other problems with his credibility. From the CBS Statement:

Bill Burkett, in a weekend interview with CBS News Anchor and Correspondent Dan Rather, has acknowledged that he provided the now-disputed documents used in the Sept. 8 "60 Minutes Wednesday" report on President Bush’s service in the Texas Air National Guard.

Burkett, a retired National Guard lieutenant colonel, also admits that he deliberately misled the CBS News producer working on the report, giving her a false account of the documents’ origins to protect a promise of confidentiality to the actual source.

Burkett originally said he obtained the documents from another former Guardsman. Now he says he got them from a different source whose connection to the documents and identity CBS News has been unable to verify to this point. Burkett’s interview will be featured in a full report on tonight’s CBS Evening News with Dan Rather (6:30-7:00 p.m., ET/PT).

In light of this and other developments reported by CBS News and other news organizations, CBS News President Andrew Heyward issued the following statement:

... "Based on what we now know, CBS News cannot prove that the documents are authentic, which is the only acceptable journalistic standard to justify using them in the report. We should not have used them. That was a mistake, which we deeply regret. Nothing is more important to us than our credibility and keeping faith with the millions of people who count on us for fair, accurate, reliable, and independent reporting. We will continue to work tirelessly to be worthy of that trust.”

CBS News and CBS management are commissioning an independent review of the process by which the report was prepared and broadcast to help determine what actions need to be taken. The names of the people conducting the review will be announced shortly, and their findings will be made public.

Gee, will they be people from inside CBS News whose careers are controlled by Dan Rather? Will CBS actually reinstate the poor guy who was already fired because he made the obvious observation that Dan Rather's story stinks?
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If You Like That One, He's Got A Million Of Them

Remember when there were almost no persuadable voters? Remember when Kerry-Gore apologists were pleading that the dearth of persuadable voters was the big reason why Kerry-Gore got little or no or negative bounce from the Democratic Convention?

How things have changed. Now the Kerry-Gore apologists are explaining that the Democrats have just begun to fight:

Can all of Kerry's qualifiers, gaffes and flip-flops on Iraq be finessed with a KISS (Keep It Simple, Stupid) strategy? Yep. That's the magic of general elections, where 50 million likely voters are just tuning in. With a few choice one-liners, the onus of responsibility can be placed back where it belongs—on Bush. Ripping off the GOP's 1994 "Contract With America" would also help. Voters needs to know four or five simple things that Kerry and the Democrats would do immediately. As the clock winds down, the odds against a Kerry victory grow longer every day. But a day can be enough in politics, for those who can fight and KISS at the same time.

Got that? There are 50 million likely voters who are just tuning in! Yep. Everyone thought there were almost no persuadable voters out there. But, in fact, Mr. Alter says there are 50 million blank slates for Kerry-Edwards to write on! That's practically one under bed! All Kerry-Edwards needs is a few good one-liners to write. Yep. Mr. Alter has realy thought this through.

A slogan, a slogan, my kingdom for a slogan!

The entire Alter column is just one howler like that after another, rapid fire - virtually a Catskills stand-up comedian's send-up of a political column. It's almost election day and Kerry-Edwards is in disarray!? Hey, that's no big deal because after Labor Day, the political calendar goes into a time warp. Problem with Kerry-Edwards' having a totally negative "I'm Not Bush" message and a divided base? Nonsense, just go more negative, because focus groups always tell consultants that they're turned off by negative campaigning ... but it's not true. Except in multicandidate races. OOPS! Sorry, Mr. Nader, this is a multicandidate race - but with virtually all of the potential third-party leakage going from Kerry-Edwards to Ralph Nader. Senator Kerry already taking heat for having insulted America's actual cooperative allies in the Iraq incursion by calling them "a coalition of the coerced and the bribed." The Alternative is for Kerry-Edwards to urge that we literally bribe our uncooperative allies by pivoting to explain in the simple terms that have eluded Kerry what he would do differently in the months ahead: Give reconstruction contracts to allies in exchange for helping us stabilize Iraq. Yep. Overt, public, simply stated commercial bribery is the way to Franco-German hearts and, through them, the American voter. Who but Mr. Alter knew?

See, here's the plan: With his strategy in tatters, Kerry must now discredit Bush and simultaneously sell his own vision. Mr. Alter doesn't actually describe John Kerry's "vision" - it's left as a kind of UFO. Of course, neither Mr. Alter nor anyone else (especially Senator Kerry) can actually say what John Kerry's "vision" thing actually is In fact, a lot of people are still trying to invent one - as a kind of Manhattan Project for the Democratic Party.

The election is not over, and the debates and events could change plenty. But Mr. Alter lays out a road map for Kerry-Edwards. A road map that they only have to follow in detail to ensure that they remain Pathetic ... And Bound To Lose.

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Sunday, September 19, 2004

Big Media Rot In Action

The Washington Post reports:

CBS News anchor Dan Rather has interviewed the retired lieutenant colonel widely believed to have helped provide "60 Minutes" with the disputed National Guard documents about President Bush that have created a credibility crisis for the network, and CBS plans to air the interview in the coming days.
CBS News' allowing Dan Rather to conduct this interview is a just a bad joke on the few people who still watch and/or trust CBS News. It's Big Media rot in action.

This is apparently supposed to be an interview that is to help salvage the credibility and reputation of CBS News. The New York Times reports that CBS will claim it was "deceived" - so the big questions will concern how gullible, negligent and willing to be deceived the CBS News operatives actually were:

CBS News officials have grave doubts about the authenticity of the material, network officials said last night. The officials, who asked not to be identified, said CBS News would most likely make an announcement as early as today that it had been deceived about the documents' origins. CBS News has already begun intensive reporting on where they came from, and people at the network said it was now possible that officials would open an internal inquiry into how it moved forward with the report. Officials say they are now beginning to believe the report was too flawed to have gone on the air. ... Officials met last night with Dan Rather, the anchor who presented the report, to go over the information it had collected about the documents one last time before making a final decision. Mr. Rather was not available for comment late last night.

.... CBS News officials had said they had reason to be certain that the documents indeed had come from the personal file of Colonel Killian. .... But officials decided yesterday that they would most likely have to declare that they had been misled about the records' origin after Mr. Rather and a top network executive, Betsy West, met in Texas with a man who was said to have helped the news division obtain the memos, a former Guard officer named Bill Burkett.

Mr. Rather interviewed Mr. Burkett on camera this weekend, and several people close to the reporting process said his answers to Mr. Rather's questions led officials to conclude that their initial confidence that the memos had come from Mr. Killian's own files was not warranted. These people indicated that Mr. Burkett had previously led the producer of the piece, Mary Mapes, to have the utmost confidence in the material.

It was unclear last night if Mr. Burkett had told Mr. Rather that he had been misled about the documents' provenance or that he had been the one who did the misleading. .... In the coming days CBS News officials plan to focus on how the network moved ahead with the report when there were warning signs that the memorandums were not genuine. .... In examining where the network had gone wrong, officials at CBS News turning their attention to Ms. Mapes...

.... Several people familiar with the situation said they were girding for a particularly tough week for Mr. Rather and the news division should the network announce its new doubts.

One person close to the situation said the critical question would be, "Where was everybody's judgment on that last day?"

So CBS News will be acknowledging that the judgment, procedures, honesty, competence, reputations and future positions of Dan Rather and his team have become major issues - perhaps the major issues - in connection with the forged Killian memos regarding President Bush's National Guard service. One consequence of those big stakes is that Dan Rather and his team have whopping conflicts of interest (or, in the terminology of the fraudulent memos they have wielded, "CYA" motives).
Of course, because the reputation and credibility of CBS News itself is ultimately at stake, no CBS News interview of Mr. Burkett can avoid all of these conflicts. But nobody has more or more intense conflicts in how Mr. Burkett's story comes out than Dan Rather - he is absolutely the wrong person to be the interviewer. What is more, although CBS News employs many other potential interviewers, Mr. Rather has far too much power over their futures. Assuming Mr. Burkett is The Source, nobody can reasonably expect Mr. Rather or anyone under his sway to ask the tough questions an follow-up questions that need to be asked, especially concerning the confidentiality agreement of CBS News with The Source and the facts leading up to Mr. Burkett's providing the documents. One might begin with the weird notion that the documents were supposed to have come from "Mr. Burkett's own files." What the heck is that supposed to mean, anyway? Mr. Burkett has been making these charges for several years and never produced such documents previously.

CBS News needs an interviewer beyond Mr. Rather's control and influence, beyond the control and influence of the CBS News hierarchy. In short, CBS News needs an "Independent Interviewer," analogous to the "Independent Prosecutors" who investigated Republican presidents Richard Nixon, Ronald Reagan, and George Bush--prosecutors who were all found worthy by Mr. Rather of admiration for their tenacity and fearlessness (Ken Starr, for some reason, was an exception and did not warrant admiration). I suggest Sean Hannity but I'm open to all suggestions.

UPDATE: Drudge is reporting that Dan rather has abandoned the memos. Perhaps that will mean more focus on the other outrageous aspects of the CBS News libel (er, I mean "story") - such as its dependence on an interview on the obvious liar Barnes.

Will CBS News now aggressively track the provenance of the fraudulent documents? Will they keep tracking even if the trail leads, as many - including the formidable Tom Maguire - see evidence it does, back to Kerry-Edwards and DNC related sources? Don't count on it - but, perhaps. Depends on how mad CBS is over being snookered and all-but-destroyed by Democrats. One could almost feel pity.

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