Prosecute This

Publius rips the Espionage Act interpretation which would hang Libby out to dry. I think he's dead on. If you indict Libby on the EA using such a broad interpretation, you not only violate a pretty standard rule of criminal statute interpretation (criminal statutes are to be interpreted narrowly), but you also make almost everyone involved in any leak of any information which isn't publicly available a felon. The consequences far outweigh any benefit of catching Scooter. The reading Publius gives has my endorsement. EA was intended to criminalize disclosure of info to hostile states or hostile non-state actors. There is always the possibility that such occurred, but no one has any evidence of that, so far as I've seen.

Now remind yourself, Scooter is already going to jail. I've re-read the indictment a couple of times. And I'm 100% positive that there is no way this guy is going to avoid jail time. None. Zero. He's going up the river. I fully expect Libby to change his plea to reduce the sentence. But a sentence there will be.

So let's take up the suggestion of Publius and start start with the IIPA. Can we get Scooter on this statute? Here's the text. Pay careful attention to the definitions. I don't have an opinion yet, but would love to hear yours.

Boyish Charms

Atrios, aka Cherubino, shows his. I have to say, if this is how the demonization act will play, it simply won't work because Alito simply never said such a thing. My preliminary thoughts on Alito are here. But Dems need to realize, squealing like a caught pig is not going to help in '06. The better move, highlight Alito's libertarian credentials, and paint him as a gay-loving bleeding heart in the judiciary hearings (which he arguably is, a little). That'll help November next. As a Democrat, I'm glad President Bush nominated a man who believes that States ought to be allowed to preserve or extend the right of marriage to any segment of its citizenry.

Judge Alito

aka "Scalito" is nominated, will be confirmed, no filibuster. He went to Princeton and Yale Law. Been on the 3rd circuit for almost 15 years. Good conservative credentials, though like Scalia, has an impressive libertarian streak. Despite the label of conservative, he's pretty much of the O'Connor mold on religious freedom. In ACLU v. Schundler 168 F.3d 92 (3d. Cir. 19990) he held a municipal holiday display featuring a creche and menorah is kosher (I mean, doesn't violate the Establishment clause) because, among other things, there were secular displays and a banner promoting racial diversity included. The headline case for him, at least as far as the radical religious right is concerned, was Planned Parenthood v. Casey where he was the lone dissenter, 947 F.2d 682 (3d Cir. 1991). Arguing that under the rational relation test PA's law should have been upheld, Alito's opinion was singled out by Rehnquist and held up as a model in the S. Ct's dissent (6-3). So the radical religious right is getting someone they think will overturn Roe. Probably not a fair conclusion though.

On the freedom side of things, Scalito has granted a Habeas writ for an African-American defendant where testimony that a juror had used racially derogatory remarks was excluded. Williams v. Price 343 F.3d 223 (3d Cir. 2003). I'm not even sure Scalia would have done that.

In Shore Regional High, 381 F.3d 194 (3d Cir. 2004), he authored the majority opinion holding that where a student is not protected from bullying and taunting by fellow students based on perceived sexual orientation, the school district has failed to provide a free and appropriate public education, and has violated the Individuals w/Disabilities Act (based on taunts about lack of athleticism). A "compassionate" conservative?

And in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), which I think is his most revealing opinion, Alito held that eligibility for asylum could be established where petitioner shows probable persecution on the basis of gender, belief in feminism, or membership in a feminist group.

So, not exactly a radical religious hothead, but someone clearly on the conservative side of things (as are most judges-despite what the fat white windbags on talk radio tell you). Also, I don't think his stance on gay rights has been deeply explored. The body of his work suggests he supports equal treatment under the law, though exactly which law (states or feds) remains to be seen. I would assume someone who dissented in Casey couldn't logically backtrack and strike down the Mass. statute, or any similar such statutes, on gay marriage.

UPDATE: Think Progress has the other view on Alito. I'd use it as a counterweight. I'm not sure my prediction of no filibuster is correct, but here's what partisans think of Alito. I didn't know about his FMLA decision. Thats sacred ground for many.

THE Question.

Overlooked, as usual, by the chatterboxers is this--the deepest and the darkest question, verbatim from Fitzgerald's televised comments:

"And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. Cooper? And was this something where he intended to cause whatever damage was caused?" (emphasis mine)

Fitzgerald didn't have to add that last one: it's an intensification that is totally unnecessary; his explanation was compelling without it. That he did add motive for the damage caused to his question list indicates his effort to answer it will necessarily venture far into the Darker Side (October 9).

No one knows the answer. No one knows how dark that side is. But the mere asking of the question is the darkest event of the darkest presidency in our history. Horribile dictu! The attorney representing the United States is forced to ask whether the assistant to the President of the United States for national security, who is also chief of staff for the Vice President, and who himself personally receives a daily intelligence briefing--whether he, and possibly others, intended damage to the United States. He said it. God help him, and protect him, in finding the answer.

Don't Blame Us ... We're Worn Out

I just heard on all three Sunday Talks: MTP, This Week w/Snuffy, Face the Nation, the talking heads say, with straight faces, that one of the biggest reasons for all this mess is that the White House is just so darned tired. They're "burned out" said Coke. Terry Moran said the President "he's tired." And all of the others circled round to discuss how this burn out is generic to second terms. Poor White House staffers, poor President, this is hard stuff. Considering he's spent almost a 1/3 of his presidency on vacation at Crawford, Kennebunkport, Camp David (where he is now) or shuffling between vacay and the White House, the charge that he's all worn out seems less than genuine.

Here's an idea, if the President and his poor staffers are just so plumb tired that they can't help but lie repeatedly to the American public and federal prosecutors, maybe they should all quit and let some people who know how to work for a living run things?

To Libby

Professor Cole coins a new word, the verb "libby". It is a combination of to lie, to lobby, and to libel.

So the sense would be of lying for the purpose of convincing a large number of persons to adopt some policy that was bad for them. Thus, "the pitchman libbied his audience to buy snake oil as a way to treat their gout." Or, "the mole libbied the public on behalf of a foreign power." That could be definition 1 in those numbered entries at Merriam Webster.

I've also been poking around radical religious right sites this morning, and it seems the argument most forcefully used is that Plame was already outed by her husband. As Schenker points out, these brainwashed clowns have no problem calling a man with integrity and honor like Patrick Fitzgerald an outright liar. Considering he's a prosecutor, that's pretty brazen, even for the radical religious right. Cue the Lee Greenwood mama! When all else fails, wave the flag, wave the same one which flew over the rubble at ground zero! Raising the terror threat level might be good too.

Woodward vs. Fitzgerald: On Lies that Trivialize the Truth

On CNN's Larry King last night, Woodward seemed to go out of his way to emphasize that the CIA's assessment that the Plame leak had only very minimal adverse impact on the CIA's intelligence operations, mostly just some inconvenience in relocating some agenets. He made it clear that we should regard the leak as relatively inconsequential, indeed trivial.

At the very least, that seems to contradict several judges' formal findings of serious threat, or harm, to national security from the Plame leak, based on the showings that Fitzgerald made to them.

Let's hope Fitzgerald makes clear today what the adverse consequences of the Plame leak were. If they were non-trivial, then Woodward is either a serious liar or a phony investigative journalist, i.e. one who does not investigate. Alternatively, the damage to CIA operations was minimal, but the serious threat to national security was from some other adverse consequence of the leak. In that case, Woodward's emphasis on the trivial impact on CIA operations was a disgraceful distortion of the truth about overall harm to national security.

Update: Jane Hamsher (See her Update 7) has the relevant quotation from Woodward, even worse than I remembered it.

Either way, unless the judges were wrong, Woodward looks extremely suspicious. The only question is whether his lying is intentional (for favor and for profit) of ignorant (for lack of doing his homework).

The Bug Lamp Theory

As we get closer and closer to 2,000 deaths in Iraq, President Bush is likely to paint the sacrifice of these deaths in terms of his favorite, and a favorite of freepers everywhere, analogy: the bug lamp. The Iraqi Invasion, we're told by the proponents of this theory, was designed to attract all the terrorists around the world onto one field of battle. We then swat them down or let them fly into the bug lamp to be incinerated. Much less expensive than if we went to every terrorist camp in the world and tried to whack them. If you don't believe people actually accept this theory, read this.

President Bush has planted a terrorist lightning rod (or bug lamp, if you like) in Iraq and it's attracting terrorists from across the globe. While the left continues to say that the war in Iraq is distracting from our efforts in the war on terror, the reality is the war in Iraq has completely distracted the terrorists from their war on us.

Note how the author practices the dangerous sleight of hand game Schenker spoke about with the war on terror and the war in Iraq. This is the essence of the bug lamp. We're safer here cause they're less safe over there.

The naivete of the proponents of the bug lamp are surpassed only by the gullible, fat, lazy Americans who continue to swallow these same words from their Commander in Chief. When will the American public wake up and realize that the "bug lamp" was simply the cheapest way Republicans could come up with to simultaneously give themselves and their rich buddies a bunch of tax cuts and not have to pay for protecting the homeland?

It is going to cost billions of dollars to secure America, and it is going to take a special ops war like we've never seen before to rid the world of global terrorism. We can do both simultaneously ... so long as we aren't wasting time, sitting on the front porch, swatting flies.

Lying as lifestyle--John Dean, on the White House

Armando, Billmon, Steve Gilliard, and others, seem to be taking John Dean's latest opinion seriously, trying to refute Dean's opinion that there will be no indictments.

But what he said was that there'd be no indictments unless the "targets" had been so "stupid" as to commit or to suborn perjury, obstruct justice, etc. Isn't that just what they have been doing?

Initially, Rove, Libby, et. al., appear to have denied everything to the grand jury. Then--confronted with one fact after another--they backed off their lies, albeit slowly. For them, lies are simply tactical or strategic discourse, no different from truths. Just say what needs to be said.

When it's as well practiced a political--and personal--lifestyle as it has been for these guys, over decades, then they don't even know how to avoid it, least of all when testifying to a grand jury for whose personal and financial characteristics they have the contempt that fully matches that of Marie Antoinette for the starving masses. But as in her day, these masses may get their day in court.

Is that really a dismissive frown on John Dean's face--or an ironic smirk?

Chickenhawks, Cowards

Call them what you will... Everyone knows about Rush Limbaugh, Bill O'Reilly, and other right wing windbags who beat the war drums loudly, but at the same time they somehow seemed to miss the call themselves.

Afterall, who can forget Juan Cole's takedown of Jonah Goldberg, and Goldberg's pathetic defense (its the post titled "On and On" where Jonah says the reason he isn't in the killzone is that his wife and family need his income)

Lurking in the hallways of many right wing blogs, many places where war is advocated on a daily basis, lie a bunch of people who don't know the first thing about war, and never will. They argue for irresponsible policies which will only make life harder and crueler for the men and women who serve in uniform. When you visit these blogs, beware, the talk doesn't match the walk.

Please note: I've included a sampling here. There are far more. But I wanted to show some smaller blogs, and some bigger ones, which have one big thing in common: a distinct lack of substantive knowledge of the policies they advocate. That these policies are life and death for men and women in uniform seems not to matter much to this group, small or big.

Captain's Quarters
Well, not much of a captain afterall.

Instapundit
Yes Glen Reynolds managed to avoid serving his country. Good thing he keeps those posts short and sweet.

Joe Citizen
JC likes to talk about how Americans have decided to fight back against radical Islam. Conspicuously absent in that group fighting back is ... JC.

Little Green Footballs
Charles Johnson likes to talk tough about Bush's military record... well at least Bush got a uniform.

Michelle Malkin
Posts a lot on how torture scandals aren't so bad. Being in uniform might change her opinion.

Redneck Central
Foul-mouthed and crazy, Wild Bill, who has never served, likes to say America should just nuke its enemies.

Redneck's Revenge
Redneck Texan and Texas Gal consistently advocate the invasion of Iran, and other reckless war policies, but they have neither served, nor will they ever serve, their country in uniform.

Scared Monkeys
Actually, it describes them every time Red or Tom passes the recruiter's office.

Ambiguity & Love in the Criminal Compact

How can I tell the many thousand ways
By which one heart another heart divines?
How can I tell the many thousand ways
By which it keeps the secret it betrays?
-Longfellow, Emma and Eginhard

This story reveals an episode which until today, remained unknown to me. Bush rebuked Rove over his role w/Plame over two years ago? Bush felt they botched the smear job on Wilson by their clumsy revelation of Plame? I realize this story is supposed to put a little distance between Bush and Rove, but the opposite is the result.

A person who rebukes privately, who finds it necessary to make "his life miserable about this" behind closed doors, all the while smiling in front of cameras and telling everyone the opposite is a person who is deeply in love. To rebuke Rove publicly would mean to betray him. After reading this story, I'm convinced that is how Bush sees this. And no, I'm not suggesting any passionate love affair between the two. But I am suggesting that what seems like stubborn loyalty is in fact a deep, abiding, enduring love. I mean that. Study this quote.

"Karl is fighting for his life," the official added, "but anything he did was done to help George W. Bush. The President knows that and appreciates that."

Appreciates? He's willing to sacrifice the integrity of his entire career in order to protect Karl. That is more than appreciation. I appreciate my financial planner, but if his doings looked like they may negatively impact my own career, I wouldn't hesitate to fire the man.

The reason I find this so important is that love is a potion that easily concocts evil plans. People who love each other need not communicate, explicitly, what they desire to do. A nod, a wink, a back rub, all communicate far more between lovers than the longest of discussions might between strangers. That ambiguity of language has set the stage for some of the greatest crimes in history, and some of the greatest stories ever told. I think a lesson which hopefully will make its way out of this mess is the following: Leaders can't rely on the judgments of their lovers. More on this later.

Claims Decreasing - Aon Study

According to Aon and the American Society for Healthcare risk, med mal claims next year will decrease by around a 1% while average claim size will increase around 7.5% (the double edged sword of lower volume).

According to the Journal, the estimated decrease in malpractice claims is "encouraging for medical professionals, who have been waging a high-profile battle against the high cost of malpractice insurance for years,"

Well sure. Fewer claims, less to worry about. But here's the part everyone forgets about lower claim totals...

[the study is also] promising for patients, since it could suggest that hospitals are improving the quality of certain high-risk practice area," such as emergency department care and obstetrics.

A summary of the study can be found here.

Why Robb is Right - Why Salvador is Wrong

Robb's editorial in the Times on 10/15 is as sharp and concise a statement of the problem in Iraq as anyone has published. Read it first.

After outlining the problem, Robb offers two solutions... let the insurgents win, and they will then disband. Or embrace the open-source warfare by feeding counterinsurgency through tribal columns. This is also known as the Salvador option (a tactic used by the US in Salvador and Colombia). As Robb states, this option is indeed "a depressing one." Militias fighting insurgents will undoubtedly "exact a horrible toll on Iraq and may persist for decades." As is always the case with American military maneuvers in the Middle East, we're stuck between Iraq, and a hard place.

But I think Robb hasn't fully explored the options offerend in his first solution. He says letting the insurgents win in order to have them melt away is a solution whose time has passed. Perhaps. But perhaps not. A Salvador option not only puts a heavy price on Iraqi hands, but it also risks spreading into neighboring countries. The Saudis, Iranians, Turks, and Syrians are all regimes still clinging to power, and their grip is completely controlled by the chaos which could ensue. If its true that we've limited ourselves to these two options, then I think thats a step in the right direction.

While it is undoubtedly the case that Iraqi insurgents now seek to destabilize the government instead of merely remove US military from their homeland, a good part of the insurgency is still based on the former impulse. If the US presence is removed, a large part of the insurgency will certainly melt away. That leaves the warlords looking for political power. The chance that these groups could provide a contagion effect on the rest of the region has got to be high, they want power, not respect, and they'll create any amount of mischief in order to get it.

I'm guessing Robb doesn't see this option, regional pressure towards political stability, as a diplomatic possibility. That may well be the case. The saber-rattling with Syria and Iran has been so great lately that such talks could be out of the question. On the other hand though, this very saber-rattling could also provide the political cover necessary for regimes to get on with the bargaining while no one is looking.

It is a gambit, for sure. Removing the military presence could result in nothing but civil war... but it could also result in regional stablization if all stakeholders look to their long term interests.

Balboa and Tort Reform

Professor Paul Rubin is at it again, out to save the world through Tort Reform. Paul is perhaps best known for his book Tort Reform by Contract, where he argues for a contractual solution to the social cost of accidental injuries. I grew up calling this the Epstein theory, but Rubin and Epstein are more or less interchangeable on this point: let parties limit their exposure to personal injury risk by consensual contract between them. Power to the people ya’ll.

However self-empowering the Rubin/Epstein theory may appear, it does have some serious holes. Prof. Alex Stein, for starters, shows the most glaring problem with the theory as applied in the context of medical malpractice: big information problem. Doctors and patients don’t bargain from nearly equivalent informational thresholds. Therefore the transaction costs on patients to overcome this barrier to bargain are enormous, indeed, if you consider it for a moment, most likely always prohibitive (maybe not for elective plastic surgery, but that’s probably about it). Moreover, the information problem is never removed, it can only be surmounted. So the Rubin/Epstein argument really only works in those areas, like business transactions for example, where parties to the contract are operating under nearly equivalent informational contexts. Guess what? Those areas ARE ALREADY COVERED BY CONTRACT law, its called commercial law, article 9 and art. 2 of the UCC, etc. In other words, been there, done that.

I’d like to say that this critique has compelled Rubin & Epstein to alter their argument a little, go back to the drawing board perhaps, and make a better go at it. You see, I actually like the theory and find it full of promise. But instead of dealing straightforwardly with this criticism, like the good academics they are, Rubin it appears has decided to just ignore the whole bunch. In fact, he’s moved on to bigger and better things.

His latest argument is: Tort Reform Saves Lives, a pithy little piece originally published in WSJ now available at AEI. This piece is based on his work: Tort Reform and Accidental Deaths, a longer more detailed study of the effect of Tort Reform on accidents (pdf here).

You can probably already guess where he goes with this. He is so bold as to suggest he’s proved that where tort reform is enacted, lives are saved, accidents are lowered, and people live longer. Indeed, after you read the WSJ article, you may wonder why we aren’t bottling tort reform and selling it on every shelf in every drug store in America? I mean its time in a bottle, the fountain of youth! Had Jesus only had tort reform, we’d all be saved!

I’m going to comment, in a much more serious voice I hope, on these two works early next week (I’m still digesting them). But for now, I’d like to draw your attention to Rubin’s conclusion in the longer paper. In the third sentence of the conclusion, Rubin says: It is an extremely expensive system, and can be justified only if it provides substantial deterrence.

Does that sound right? Is the law of torts, that is the collection of legal theories designed to hold people accountable for the injuries they cause, just about providing deterrence? Is there absolutely no other justification, perhaps a moral one, which can be used to justify at least some of the expense? I mean, didn’t our Mama teach us when we break something we gotta go and pay for it? Why did she do that?

A Quick Note

First, I wanted to recommend PoliticalSherpa.com, especially this post. Also, we will be updating the recommended links menu soon, it is sadly out of date. Third, Sully's been hacked. Gotta run now, this Plame thing sure is heating up. Maybe we should aggregate all the links from comments and others into one Plame thread?

The Darker Side of the Plame Apocalypse

Apocalypse, that is, in the original Greek sense of an unveiling, or literally a drawing of the curtain. . . . (the future horror of which remains to be seen after what is behind the curtain is fully scrutinized).

Can anyone refute this darker motive for the unveiling of Plame? . . . That Cheney and possibly even W -- frustrated that the CIA wasn't delivering the WMD goods they demanded -- decided to retaliate by destroying the CIA's primary WMD intelligence functionality, i.e. the Brewster-Jennings front company. To see the Plame leak as an attempt simply to embarrass and discredit Wilson may be, how shall I say it, insufficiently appreciative of the depth of the malice here.

Let none dare say "they wouldn't do that". . . of course they would, they wanted a CIA they could call their own. When you think about it, nothing much in their record or their rhetoric (sift it carefully) shows any moral or political ethical principle that would prevent their doing so, indeed there isn't much in their record or rhetoric that even speaks of loyalty to the nation as a duty.

If destroying Brewster-Jennings was their true motive (and it arguably is true until explicitly refuted, since they all knew very well that outing Plame would destroy Brewster-Jennings) then let none dare call it anything else but treason.