The Nation

Rove Scandal: Karl Returns to the CIA Leak Grand Jury

Email is flying, cell phones are humming, Blackberries are bursting. All with the news--broken by Associated Press--that Rove asked to testify one mo' time before Patrick Fitzgerald's grand jury in the Plame/CIA leak case. On HuffingtonPost.com, blogger Lawrence O'Donnell, who has demonstrated he has some decent sources on this story, made this prediction: "at least three high level Bush Administration personnel indicted and possibly one or more very high level unindicted coconspirator."

While more news about Rove's pending testimony to the grand jury may leak out--Michael Isikoff, where are you?--today's revelation does give speculators and analysts much to chew on. The key question is whether there is any way to spin this news in a positive direction for Rove. So far, the lawyers and others I have spoken and corresponded with concur: no.

No lawyer would send a client in front of a grand jury unless he or she had to. This is an "extreme and desperate act," said one attorney I consulted. It's important to note that the AP story says that Rove requested the chance to talk to the grand jury in July. It does not say when in July this occurred. But it was on July 13 that Matt Cooper testified to the grand jury and said that Rove had told him that former ambassador Joseph Wilson's wife worked at the CIA. (A Cooper email to his editors confirmed this.) Did Cooper's testimony contradict Rove's? (Perhaps Rove had previously told Fitzgerald he had not spoken to Cooper about Valerie Wilson.) If so, Rove would have a pressing need to engage in testimony rehabilitation.


Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on Bush's latest Big Speech on the war on terrorism, the troubled (?) Harriet Miers nomination, and other in-the-news matters.


As one lawyer pointed out to me, Rove's attempted rush to the grand jury room could be explained by three scenarios. Rove wanted to try to spin away the contradiction and explain what the meaning of "is" is. ("In my previous testimony, I said I never mentioned Valerie Wilson's name to any reporter. That is true. I never said I didn't talk about 'Wilson's wife.'") Or he's looking to cut a deal: agree that--due to faulty memory--he accidentally misstated his previous testimony and he's willing to accept a minor infraction in exchange for more accurate testimony. Prosecutors do occasionally run "blue plate" specials: come in now, tell all, and it won't be so bad. Has Rove's number been called in that fashion. Or there's this possibility: some other Bush official--the Vice President?--has given testimony that poses problems for Rove. My hunch is that the fact that Rove's request happened in the same month Cooper testified is telling.

In the meantime, the signs are that Rove is indeed a target of the investigation, since Fitzgerald would not declare he is not. Rove's attorney, Robert Luskin, who has made false statements previously, yesterday issued a no-comment when asked if Rove was a target. But today he subtly shifted his position and claimed that Rove had not received a letter from Fitzgerald informing him he is a target. One lawyer I chatted with says that the absence of such a letter at this point in the investigation does not mean much. Rove could be a target without having received a letter.

A Democrat I spoke with said that other Democrats in Washington have noticed that in the past few days Rove has not been spotted at White House events that he customarily would attend. Perhaps he has a cold.

But the big point--at the moment--is that Rove would not have asked to appear once more before the grand jury unless he had to. And note that Fitzgerald did not take him up on this offer for nearly three months. That suggests Fitzgerald wanted to collect more material before hearing from Rove yet again.

Unlike O'Donnell, I'm not issuing a prediction. I'm just speculating. Perhaps there's an innocent explanation that no smart lawyer can yet explain. But for some reason Rove felt compelled to return to the grand jury room. That must be some reason.

A Mess of George Bush's Own Making

It is fair to say that a good many Americans perceive George W. Bush to be a doltish incompetent who does not know the first thing about fighting terrorism.

But, whatever the president's actual level of competence may be, it is now clear that he has even less respect for the intelligence of the American people than his critics have for his cognitive capabilities.

As the president struggles this week to make a case for the staying the course that leads deeper into the quagmire that is Iraq, he is, remarkably, selling a warmed over version of the misguided take on terrorism that he peddled before this disasterous mission was launched.

Apparently working under the assumption that no one has been paying attention over the past two and a half years, Bush delivered a speech to the National Endowment for Democracy Thursday in which he dismissed calls for the withdrawal of U.S. forces from Iraq. "Some observers also claim that America would be better off by cutting our losses and leaving Iraq now," the president argued, before concluding that, "It's a dangerous illusion refuted with a simple question: Would the United States and other free nations be more safe or less safe with Zarqawi and bin Laden in control of Iraq, its people and its resources?"That's a scary scenario. Unfortunately, it is one that the president created. And it is one that the president still fails to fully comprehend.

To hear the president tell it, the U.S. went to Iraq to combat bin Laden's al Qaida network.

The problem, of course, is that going to Iraq to confront al Qaida in 2003 was like going to the Vatican to confront Protestants.

Saddam Hussein and his Baathist Party cadres were a lot of things, but they were never comrades, colleagues or hosts to the adherents of what Bush referred to in his speech as "Islamic radicalism," "militant jihadism" or "Islamo-fascism."

If any individuals on the planet feared and hated al Qaida, it was Hussein and his allies. The Iraqi Baathists were thugs, to be sure, but they were secularist thugs. Indeed, many of the most brutal acts of oppression carried out by the Iraqi regime targeted Islamic militants and governments aligned with the fundamentalists. The eight-year war between Iraq and Iran pitted the soldiers of Hussein's secular nationalism against the armies of the Ayatollah Khomeini's radical vision of Islam. That is why, while the United States remained officially neutral in the war that lasted from 1980 to 1988, it became an aggressive behind-the-scenes backer of Hussein. As part of that support, the U.S. State Department in 1982 removed Iraq from its list of states supporting international terrorism. That step helped to ease the way for loans and other forms of aid -- such as the U.S. Agriculture Department's guaranteed loans to Iraq for purchases of American commodities. It also signaled to other countries and international agencies that the U.S. wanted them to provide aid to Hussein -- and if the signal was missed, the Reagan White House and State Department would make their sentiments clear, as happened when the administration lobbied the Export-Import Bank to improve Iraq's credit rating and provide it with needed financial assistance. If any lingering doubts about U.S. attitude remained, they were eased by the December 20, 1983, visit of Donald Rumsfeld, who was touring the Middle East as President Reagan's special envoy, for visits with Hussein and Foreign Minister Tariq Aziz.

As it happened, the U.S. was reading Hussein right. In a region where the common catchphrase is "the enemy of my enemy is my friend," Hussein was not merely someone who was fighting a neighboring country. He was fighting the spread of the radical Islamic fundamentalism that the U.S. so feared because he was a committed secularist. Hussein promoted the education of women and put them in positions of power. Under Hussein, Christians, Jews and other non-Muslims enjoyed a greater measure of religious freedom than they have in most Middle Eastern countries in recent decades. Hussein included non-Muslims among his closest advisors, most notably Aziz, a Christian adherent of the Chaldean Catholic faith that remains rooted in Iraq.There was a paranoid passion to Hussein's secularism. He and his vast secret police network remained ever on the watch for evidence of Islamic militancy, and when it was found the response was swift and brutal. It was an awareness of the fact that Hussein was a bulwark against militant Islam that led key aides to President George H.W. Bush to argue against displacing him after the liberation of Kuwait by a U.S.-led force in 1991.

Nothing about Hussein's Baathist ideology changed during the 1990s. So it came to no surprise to anyone who knew the region that the 9/11 Commission, after aggressively investigating the matter, found no operational relationships existed between al Qaida and Iraq before the 2003 invasion that toppled Hussein.

Now, after having removed the bulwark against militant Islam, Bush describes an Iraq that is rapidly filling up with followers of al Qaida, and warns that the withdrawal of U.S. forces would allow the militants to "use the vacuum created by an American retreat to gain control of a country, a base from which to launch attacks and conduct their war against nonradical Muslim governments."

What Bush did not say in his speech Thursday was that his own actions had created the dire circumstance he described.

If George Washington's mantra was that he could not tell a lie, George Bush's is that he cannot admit a mistake.

But the president's refusal to face reality has isolated him from those who are serious about fighting the spread of terrorism.

General Peter Cosgrove, the former head of Australia's Defense Forces, rejects the notion that staying the course is the smart response. In fact, the well-regarded former commander of the military of a key U.S. ally, says that withdrawal makes sense because it will "take one of the focal points of terrorist motivation away, and that is foreign troops."

It is Cosgrove who suggested the late 2006 withdrawal date that has been taken up by U.S. Sen. Russ Feingold, D-Wisconsin, the first member of the Senate to urge the development of an exit-strategy timeline.

For those who do not trusts the assessment of an Australian, consider that Porter Goss, the director of the Central Intelligence Agency, who says, "The Iraq conflict, while not a cause of extremism, has become a cause for extremists. Islamic extremists are exploiting the Iraq conflict to recruit new, anti-U.S. jihadists."

The president who argued that Iraq needed to be invaded in order to fight terrorism has instead opened up a new country to al Qaida's machinations.

The president who argued that the U.S. must continue to occupy Iraq in order to prevent the spread of terrorism has instead created a quagmire in which even the head of his own CIA says that the U.S. presence is being exploited by terrorists to recruit new, anti-U.S. jihadists.

Now, George Bush argues for staying the course.

Perhaps Osama bin Laden would agree with that strategy.

But the American people are wising up.

The latest Gallup/CNN/USA Today poll tells us that only 32 percent of those approve of Bush's handling of the war. A remarkable 59 percent now say that the invasion a mistake. And an even more remarkable 63 percent say they want to see some or all U.S. troops withdrawn.

John Nichols covered the first Gulf War and has frequently reported from the Middle East over the past two decades. For more of his analysis of the administration's misguided approach, check out his book The Rise and Rise of Dick Cheney, out in paperback November 2 from The New Press.

A Cheer for McCain?

Folks outside the Beltway often wonder why reporters--even those of a liberal bent--have a fondness for John McCain. Yeah, he's a warmonger in that he's been an enthusiastic cheerleader for George Bush's misadventure in Iraq. Yeah, he essentially pimped for Bush in 2004--after the Bush campaign ran a scandalous and dirty-as-can-be campaign against him in the 2000 Republican primaries. Yeah, he sucks up to social conservatives, as he ponders another presidential bid. For instance, he recently said intelligent design should be taught in schools. (McCain is probably hoping that he can take the edge off social conservatives' suspicion of him.) But this week, he poked Bush right in the snout. Despite a veto threat from the White House, McCain led--yes, led--the Senate to a 90-to-9 vote in favor of setting humane limits on the interrogation of detainees in Iraq and elsewhere. Given the damage done by the Abu Ghraib scandal, it's shocking that Bush would not support such a measure. But he didn't. And McCain shoved it down his throat.

McCain attached to the $440 billion military spending bill a provision that both defines the permissible actions that can be taken by US interrogators--whether they are dealing with uniiformed members of an enemy army or stateless terrorists--and prohibits the use of inhumane and degrading tactics. For months, McCain and a few other senators (including Republicans Lindsey Graham of South Carolina and John Warner of Virginia) have pushed this measure, but they have been blocked by Senate Majority Leader Bill Frist. In July, Frist pulled the defense appropriations bill off the floor rather than permit McCain a vote on this provision. Instead, he scheduled a vote on legislation that would protect gun sellers from lawsuits. (Click here for more on that.)

But when McCain on Wednesday introduced this provision as an amendment to the military spending bill--which is considered as a must-pass bill--he and his comrades won over most of their fellow Republicans. Only one Republican--Ted Stevens of Alaska--spoke against the provision. Even at a time when Bush's supposed political capital is draining faster than the waters of Lake Pontchartrain pouring through a busted levee, this was quite an accomplishment for McCain. It was a major rejection of Bush's claim that he knows best how to be commander in chief. During the Senate debate--such as it was--Republican Senator Lamar Alexander of Tennessee spoke eloquently of how the US Constitution assigns the task of creating rules for the capture of enemies to Congress, not the president. Finally, Congress--that is, the Senate (who knows if the House GOPers will follow its lead?)--has reasserted (for the moment) its standing as a coequal branch of government when it comes to fighting a war. This was McCain's doing.


Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on Bush's latest Big Speech on the war on terrorism, the troubled (?) Harriet Miers nomination, and other in-the-news matters.


And this is why McCain tugs on the heartstrings of reporters stuck in Washington. He does occasionally go off the reservation for a principle. Not often enough, but more so than most of his fellow Republicans. After getting ensnared in the Keating Five money-and-politics scandal years ago, he took up the cause of campaign finance reform. (His McCain-Feingold bill was a mixed bag at best, but it was a try.) He tried to shout down Bush's call for tax cuts that would benefit the rich and increase the deficit (but failed). He went after Big Tobacco, one of the main sources of campaign dollars for his party. In recent years, he has worked with Senator Joe Lieberman on global warming legislation.

McCain's anti-Abu Ghraib measure could still be stripped out of the spending bill. Consequently, he has called for public pressure that might persuade House GOP leaders not to undermine this provision and that might make it tough for Bush to veto the measure. So his campaign to bring a dollop of honor to the United States' treatment of its enemies has not yet triumphed. But even if McCain's effort is undone by other Republicans and/or the White House, at least he has shown that when it comes to this issue of decency, Bush is far outside the mainstream.

Gitmo's Shame

You would hardly know it from watching the news or reading the papers, but there's a two-month-old hunger strike going on at Guantánamo Bay. After more than three years of internment without charges or trials, approximately forty detainees are striking for the right to a fair hearing before a judge.

The Pentagon is in denial about its violations of the Geneva Accords; the mainstream media are oblivious. As Center for Constitutional Rights (CCR) staff attorney Gitanjali Gutierrez says, "It is astounding that men in US custody are willing to engage in a hunger strike until they are afforded a fair hearing or they die of starvation." But it's happening with no one paying all that much attention--except in Europe, Asia and the Middle East, where, as Clive Stafford Smith explaines in the Nation magazine, any US claim to be the standard-bearer of the rule of law has dissolved.

It's so bad even Thomas Friedman has called for closing the prisoners' camp. But Friedman's column last summer aside, this hunger strike really does seem to be the story America doesn't care about. And the Gitmo authorities, mindful of the bad publicity a detainee death by starvation would cause, are apparently force-feeding the hunger strikers to make sure we don't see a Muslim Bobby Sands.

CCR has been out in front in opposing the Bush Administration's extra-Constitutional detentions at Guantánamo, having released fact-finding reports and argued before federal courts on behalf of judicial rights for the detainees. The venerable lefty legal outfit has also put up an outstanding Guantánamo Action Center--a terrific site featuring resources and organizing tools that can help break the silence.

Amnesty International has also been a strong and vocal opponent of the Bush Administration's detainee policy, which has put hundreds of people of at least 35 different nationalities "in a legal black hole, many without access to any court, legal counsel or family visits," according to an AI report released last May which also famously called Guantánamo "America's gulag."

"As evidence of torture and widespread cruel, inhuman and degrading treatment mounts," the report rightly insisted, "it is more urgent than ever that the US Government bring the Guantánamo Bay detention camp and any other facilities it is operating outside the USA into full compliance with international law and standards. The only alternative is to close them down," which is precisely what many grassroots groups along with people like John McCain have demanded. AI also offers an easy way to write the White House. Click here to demand that Guantánamo detainees receive their legal rights and let them know people are watching.


Before the current round of prisoners, 300 Haitians were detained at Guantánamo Bay. "Their story should have taught the US that Guantánamo is both bad policy and bad law." Read Yale University law professor and human-rights expert Harold Koh's new essay, originally published on openDemocracy.net.

'Are You Going to Provide $5 Million for The Nation?'

In a scathing report issued on September 30, the Government Accountability Office's investigators said the Bush Administration had broken the law by using taxpayer dollars to disseminate "covert propaganda" in the United States.

The case in question involves the buying of favorable news coverage of the White House's education policies in the form of payments to conservative commentator Armstrong Williams and the hiring of a PR firm to analyze media perceptions of the Republican Party. (The GAO's ruling should lead the mainstream media to broaden its investigation: What other reporters and media outlets are on the government's payroll?)

But this is the tip of the proverbial iceberg. It's now clear that the Bush Administration represents a broad threat to a free and fair media. The bribing of journalists to report "friendly" news has to be put in the context of a decades-long effort by the right and its corporate allies to undermine journalists' ability to report fairly on power and its abuse--whether through consolidation, cutbacks in news budgets or by attaching the label "liberal bias" to even the most routine forms of news-gathering and reportage.

Up next in the scandals of Bush crony journalism: In early November, the Corporation for Public Broadcasting's Inspector General is scheduled to release his report on former CPB chair Kenneth Tomlinson's payments to a conservative consultant to rate the political leanings (and loyalties) of PBS guests. IG Kenneth Konz said last month that Tomlinson may have violated internal rules, and that his final report could recommend that Tomlinson be barred from serving as director. (Tomlinson recently stepped down as CPB's Chair, to be replaced by Cheryl Halpern, a former GOP fundraiser and donor.)

At a charged Senate hearing last July, Tomlinson rebuffed questions about the $5 million in taxpayer and viewer-donated resources he'd devoted to a show starring the far-right ideologues of the Wall Street Journal editorial page. As Nation columnist Eric Alterman wrote in September 2004, "Short of turning the broadcast day over to Rush Limbaugh or Richard Mellon Scaife, it's difficult to imagine a more calculated effort to undermine PBS's intended mission of providing alternative programming than this subsidy to a wealthy, conservative corporation to produce yet another right-wing cable chat show." (Kudos to groups like Free Press, Common Cause, FAIR, Media Matters and the Center for Digital Democracy for exposing CPB's pressure on PBS to conform to right-wing editorial perspectives and calling for broad reform and transparency.)

At the same hearing, Democratic Senators Daniel Inouye and Richard Durbin pointedly questioned Tomlinson about using public money to monitor the Moyers program and promote The Journal Editorial Report. At one point, Durbin pointedly asked Tomlinson: "Are you going to provide $5 million for The Nation magazine?"

That question--at a time when Moyers has left NOW, and when the right continues to dominate not only commercial TV but also our public broadcasting outlets--leads me to send an open letter to CPB's board.

While the core issue remains restructuring CPB's role, we know that will take many years--and a Democratic majority in at least one house of Congress. Right now, I urge all who believe in the importance of a vigilant, independent press to click here to e-mail the CPB's Board (or call 202-879-9600 or mail to the Corporation for Public Broadcasting, 401 Ninth Street, NW Washington, DC 20004-2129) and urge it to live up to the CPB's stated mandate of restoring real balance to PBS's airwaves by taking Durbin up on his suggestion and providing funding to develop a real roster of balanced and hard-hitting programming--spearheaded by a weekly Nation program.

Dear CPB Board,

As you may recall from the testimony in the Senate on July 11, Senator Richard J. Durbin of Illinois inquired as to whether CPB had any immediate plans "to provide $5 million for The Nation magazine." We are writing in the hopes of taking you up on what we think was a fine idea on Senator Durbin's part.

We're serious. With the departure of Bill Moyers from NOW, PBS has no outspoken liberals at all offering commentary. And yet the Wall Street Journal editorial page, owned by the billion-dollar Dow Jones Corporation, receives a $5 million taxpayer subsidy from CPB to offer its editors' opinions on a weekly basis with absolutely no input from the other side. While Now continues to operate, it does so exclusively as a news and interview show, with only half the weekly air-time it previously received.

Because we have frequently heard former CPB Chair Kenneth Tomlinson and others speak of the need to offer "balance" to PBS viewers, we think a show featuring Nation editors, columnists, writers and invited guests would provide just the balance a far-right institution like the Wall Street Journal editorial board invites. Unlike most voices in the mainstream media, The Nation has been consistently skeptical of George W. Bush's foreign policy, his tax cuts, his social agenda, indeed, even his alleged "victory" in the 2000 election. Surely PBS viewers cannot be said to benefit when they hear only one side of the story. And yet since CPB began subsidizing the Wall Street Journal's show, that is all they get.

Many people associated with The Nation are seasoned television performers. We would be happy to work with you and your staff in creating a show that underserved viewers will find interesting, enlightening and entertaining, and will help CPB meet its stated mandate of restoring a much desired sense of "balance" to PBS, so that not only conservative opinions are the ones to which viewers are treated on a weekly basis.

We eagerly await your response.

Katrina vanden Heuvel,

Editor, The Nation

Not Since Nixon

More than three decades have passed since a President nominated someone without judicial experience to serve on the US Supreme Court.

The last such nominations--those of William Rehnquist and Lewis Powell Jr.--were announced on the same day, October 20, 1971, by then President Richard Nixon. Nixon had run into problems getting sitting federal judges placed on the high court. His nomination of Clement F. Haynsworth Jr., chief judge of the Fourth US Circuit Court of Appeals, to fill the seat left vacant by the resignation of Abe Fortas, was rejected by the Senate in 1969. A year later, the Senate turned down Nixon's nomination of G. Harrold Carswell, a judge on the Fifth US Circuit Court of Appeals, to fill the same vacancy.

In the fall of 1971, with vacancies created by the resignations of Justices John Marshall Harlan II and Hugo Black, Nixon opted for Rehnquist, an Arizona lawyer with close ties to conservative icon Barry Goldwater, and Powell, a former president of the American Bar Association. And, while the Rehnquist nomination created a bit of a stir, both men were confirmed before the year was out--giving Nixon a pair of "wins" in his long wrestling match with an overwhelmingly Democratic and ideologically muscular Senate.

On the surface, it would not seem that George W. Bush would have any reason to imitate Nixon's approach. Bush's first pick for the high court, John Roberts, a member of the US Circuit Court of Appeals for the District of Columbia when he was selected, was easily confirmed to replace Rehnquist as Chief Justice--winning the support of every Republican and half the Democrats in the Senate. And the Senate that Bush is working with has a solid Republican majority and a soft Democratic opposition that is far more pliable than the one Nixon confronted.

Indeed, if Bush faced a challenge as he selected a replacement for retiring Justice Sandra Day O'Connor, it came from the Republican right. Supportive but unexcited by Roberts, social conservatives made it clear that they wanted to see an abortion-opposing, gay rights-rejecting judicial activist as the next nominee from the President who repeatedly told Republican rallies that his favorite members of the court were right-wing Justices Antonin Scalia and Clarence Thomas. Kansas Senator Sam Brownback, a conservative firebrand who entertains notions of seeking the Republican nomination for President in 2008, recently went so far as to suggest that he would vote against a Supreme Court nominee who lacked a "solid and known" record of opposition to reproductive rights, same-sex marriage and the wall of separation between church and state.

Brownback did not get his "solid and known" nominee. Bush just wasn't up for the fight.

Suffering from dismal approval ratings and unsettled by the burgeoning legal scandals involving the Republican leaders of the Congress, Bush went for the judicial-selection equivalent of a bunt. With his nomination of White House counsel Harriet Miers, the President has selected a non-judge so obscure--and so free of the burdens imposed by a judicial "paper trail"--that the Associated Press headlined a profile of her: "Bush's Court Pick Tends to Avoid Limelight."

In an interview earlier this year, Miers told the Dallas Morning News that it was her job to "stay out of the headlines."

She has done so with considerable success during a public career that, aside from brief tenure as president of the Texas State Bar Association, has pretty much been defined by her friendship with George W. Bush--who counted on her to help him sort out lingering controversies arising from his avoidance of the draft during the Vietnam War, and who then rewarded her with appointments to various positions during his gubernatorial and presidential terms. Now comes the ultimate appointment: nomination to a lifetime job on the nation's most powerful court.

That's quite a token of their friendship. But Miers has given Bush something, as well: a "stealth nominee" who ought to be able to sail through the toothless confirmation process with little trouble. Yes, of course, there will be grumbling from liberal interest groups--and even some conservative ones. But the precedent set by Roberts and other recent nominees--refusing to answer direct questions from members of the Senate Judiciary Committee and stonewalling requests for paperwork produced while serving in appointive positions--should serve her well.

The only hope that Americans will get a sense of where Miers is coming from before she puts on the judicial robes–-and it is a faint one indeed--is that members of the Senate will consult the Constitution and historical precedents before this confirmation process is done. They might look back to a page from the Nixon days.

The former President once complained that, by rejecting some of his nominees and subjecting the rest to tough scrutiny, the Senate was usurping his authority. Senate majority leader Mike Mansfield, a Western Democrat whose love of the Senate was exceeded only by his distrust of the executive branch, responded by explaining that the "advise and consent" clause in the Constitution meant that the Senate shared the president's powers when it came to filling court vacancies.

Nixon's slogan in his re-election campaign of 1972 was "Nixon--Now More Than Ever."

Faced with a stealth nominee for one of the most important positions in the land, and the rapid degeneration of Congressional checks and balances on the executive, we could use some Mike Mansfields in the Senate--now more than ever.

Harriet Miers: Supreme Court Choice With Few Footprints

Here we go again. Another pick for the Supreme Court without much--or, in this case, any--judicial experience. And that will make it hard for senators--or anyone else--to assess what sort of Justice Harriet Miers, currently George W. Bush's White House counsel, will be if the Senate confirms her as Bush's pick to replace the retiring Sandra Day O'Connor. In announcing his selection of Miers, Bush said, "I believe that senators of both parties will find that Harriet Miers's talent, experience and judicial philosophy make her a superb choice."

But what precisely is her "judicial philosophy"? And how can it be discerned? Miers has never been a judge (which should not be a disqualification). She spent most of her career as a corporate lawyer (Bush was once a client) before joining the Bush Administration as staff secretary. Does she qualify as a crony? According to the Los Angeles Times, Miers introduced Bush and Alberto Gonzales in the 1990s. (Given Miers's close personal connection to Bush, senators might want to ask whether it's good for the nation to have a Supreme Court Justice who has such a tight bond with a person whose decisions and policies come before the Court.) In private practice, she headed one of Texas' largest law firms, Locke Lidell & Sapp, and as a trial litigator she represented Microsoft and Disney. She also racked up a series of firsts: first woman to lead a major law firm in the Lone Star State, first woman to become president of the Dallas Bar Association, first woman to become president of the state bar.

But--again--what is her "judicial philosophy"? It seems that even conservatives are not sure--and worried. Conservative bloggers and commenters quickly expressed anxiety over this nomination, not knowing if Miers is truly a conservative. "Utterly Underwhelmed," proclaimed conservative blogger Michelle Malkin. On one conservative site, a reader posted campaign finance reports showing that Miers donated $1,000 to the Democratic Party in 1988 and $1,000 to Al Gore's presidential campaign that year, as well as $1,000 to a Democratic senatorial candidate the previous year. (Egads! Maybe this is not a disaster of a pick for Democrats.) Soon after Bush unveiled the Miers nomination, David Frum, a former Bush speechwriter, observed:

I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated....I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or - and more importantly - that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

I am not saying that she is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have no good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.

So if a former White House co-worker is unclear about Miers's "judicial philosophy," what's a senator to do? It seems it will take much probing to determine whether Miers's views on issues of constitutional law make her a "superb choice." But before any Democratic senator could raise a question, Republican Senator Bill Frist, the majority leader, was telling them not to push for too much information. In a press release, he stated,

As we begin the confirmation process, I hope the Senate continues to move beyond the partisan obstructionism of the recent past. I hope we carry forward the lessons learned from Chief Justice Roberts' nomination....A bipartisan majority of senators also agreed that senators can make an informed decision on the fitness of a judicial nominee by focusing on the individual's qualifications and not her political ideology and by looking at the individual's record, testimony, and writings, without probing into confidential and privileged documents. Finally, a bipartisan majority of senators agreed that we should not ask or expect nominees to compromise their judicial independence by pre-judging cases or issues that may come before the court.

Here was a warning: don't go after documents Miers has written or advice she has given while she has worked in the White House. But that might be necessary to suss out her "judicial philosophy." (By the way, I'd like to see a Democratic senator ask her how the counsel's office has handled the Plame/CIA leak case. Ms. Miers, can you tell us what advice you gave to the President or anyone else in the White House when evidence recently emerged showing that Karl Rove and Scooter Libby had passed classified national security information to reporters? Can you tell us how the counsel's office reacted to this evidence, which showed that the White House had previously misinformed the public when it declared that Rove and Libby were not involved in this leak?) After decades of defending corporations and a few years working in the White House, there is not much of a record upon which to judge Miers's "judicial philosophy."


Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on other in-the-news matters.


Miers has not left many footprints. A quick search of articles in the Lexis-Nexis database disclosed little material of note, certainly no clues. In a profile of her last year, Legal Times described her as "one of the most discreet, most private and most protective members of George W. Bush's inner circle." That profile also noted that her tenure as top domestic policy adviser in the Bush White House was "problematic." Apparently, she was more focused on process than policy. Legal Times reported that "she did raise eyebrows early in Bush's first term by arguing against eliminating the American Bar Association's 50-year-old role of vetting potential federal judiciary nominations, a move led by [then White House Counsel] Gonzales." Miers was defending the institution she once helped lead, but booting the ABA out of the judicial process was a top-priority item for rightwing activists. That's more grist for the conservative bloggers--and more reason for them to wonder where her ideological loyalties lay.

So here's an idea. Perhaps right and left can join forces in a campaign called Harriet, Give It Up! The point would be to demand that she and the White House provide enough details so that senators--and all Americans--have sufficient information to evaluate her "judicial philosophy." If this means answering questions related to Roe v. Wade, so be it. Let's have it all out in the open--and then a real fight. Unlike John Roberts Jr., Miers would replace a swing-vote justice. And many rightists do not want to take a chance. They want a champion upon whom they can count to undo Roe and advance other conservative notions. Prior to the Miers appointment, Senator Sam Brownback, a social conservative Republican from Kansas, said he would want to know much about the next Supreme Court nominee's views before casting a vote. (He is, of course, looking for a Justice who will undermine, if not eliminate, abortion rights.) Brownback should get his wish.

Disappointment among conservative activists and writers is certainly not bad news for Democrats and progressives. But the bottom line remains: Miers is an unknown when it comes to the critical issues facing the Supreme Court and the nation. She sure is no liberal. But will she be a Justice in the mode of Antonin Scalia and Clarence Thomas--that is, the type of jurist Bush promised his conservative base he would nominate? There is no telling at this point. But isn't it in the interests of both the right and the left to find out before the Senate votes on this all-important nomination?

Indicting the President's Policies

In Washington, where it is exceeding difficult to get the political players or the press corps to pay attention to more than one story at once, no0 one would suggest that it was "smart politics" to deliver a major address on the day that House Majority Leader Tom DeLay being forced to step aside after being indicted on criminal conspiracy charges.

But sometimes the work of Washington involves more than political games.

Sometimes it involves life and death questions of national policy. And it is particularly frustrating in such moments to see vital statements about the nation's future get lost in the rush to discuss the scandal du jour. To be sure, the well-deserved indictment of DeLay merited the attention it received. But the indictment of President Bush's "stay-the-course" approach with regard to the Iraq War, which was delivered on the same day by U.S. Sen. Russ Feingold, D-Wisconsin, should have gotten a lot more attention than it did.

At a time when too many members of Congress, in both parties, are afraid to address the crisis Bush's missteps, misdeeds, arrogance and intransigence have created, Feingold broke the silence in the Senate.

"I cannot support an Iraq policy that makes our enemies stronger and our own country weaker, and that is why I will not support staying the course the President has set," Feingold told the Senate on the same day official Washington was focusing all its attention on the trials of Tom DeLay

Feingold's declaration came as part of scathing assessment of the Bush administration's determination to continue pursuing failed strategies not just in the Middle East but internationally.

"If Iraq were truly the solution to our national security challenges, this gamble with the future of the military and with our own economy might make sense," explained the senator, who last month called for a timeline for the withdrawal of U.S. troops from that country. "If Iraq, rather than such strategically more significant countries as Saudi Arabia and Pakistan, were really at the heart of the global fight against violent Islamist terrorism, this might make some sense. If it were true that fighting insurgents in Baghdad meant that we would not have to fight them elsewhere, all of the costs of this policy might make some sense. But these things are not true. Iraq is not the silver bullet in the fight against global terrorist networks. As I have argued in some detail, it is quite possible that the Administration's policies in Iraq are actually strengthening the terrorists by helping them to recruit new fighters from around the world, giving those jihadists on-the-ground training in terrorism, and building new, transnational networks among our enemies. Meanwhile the costs of staying this course indefinitely, the consequences of weakening America's military and America's economy, loom more ominously before us with each passing week. There is no leadership in simply hoping for the best. We must insist on an Iraq policy that works."

Feingold detailed concerns about the damage done to the U.S. military by pursuit of the misguided mission in Iraq. "The Administration's policies in Iraq are breaking the United States Army," explained the Wisconsin Democrat, who reviewed concerns about the stress placed on soldiers and their families and about shortfalls in recruitment for the armed services.

"Make no mistake, our military readiness is already suffering," Feingold explained. "According to a recent RAND study, the Army has been stretched so thin that active-duty soldiers are now spending one of every two years abroad, leaving little of the Army left in any appropriate condition to respond to crises that may emerge elsewhere in the world. In an era in which we confront a globally networked enemy, and at a time when nuclear weapons proliferation is an urgent threat, continuing on our present course is irresponsible at best."

While the military is taking a hit, Feingold noted, so too is the economy. Noting that all of the cost of the war -- "every penny" -- "has been added to the already massive debt that will be paid by future generations of Americans," Feingold asked, "How much longer can the elected representatives of the American people in this Congress allow the President to rack up over a billion dollars a week in new debts? This war is draining, by one estimate, $5.6 billion every month from our economy, funds that might be used to help the victims of Hurricane Katrina recover, or to help address the skyrocketing health care costs facing businesses and families, or to help pay down the enormous debt this government has already piled up."

Feingold remarks were more than a critique of the administration. They were a call to action for the Congress.

"Bush Administration's policies in Iraq are making America weaker," he told the Senate. "And none of us should stand by and allow this to continue."

Truer words have rarely been spoken in the Capitol -- especially in recent years. Feingold's call deserves the attention, and the encouragement, not just of responsible members of the Congress but of the great mass of Americans who know that something has gone very wrong in Iraq -- and Washington.

A CIA-Did-It Defense for Scooter in the Plame Leak Case?

When you already have a fall guy, use him--especially if he's a dead man.

Could that be the legal strategy of I. Lewis Libby (a.k.a. Scooter), Vice President Dick Cheney's chief of staff, in the Plame/CIA leak case?

The news of the day in this scandal is that New York Times reporter Judith Miller, who was imprisoned for refusing to cooperate with special prosecutor Patrick Fitzgerald, is free. She and the Times cut a deal with Fitzgerald, after Miller had served 12 weeks for being in contempt of court. Under this arrangement, Miller agreed to testify before Fitzgerald's grand jury and to hand over edited version of her notes.

This is not much of a noble denouement to Miller's crusade for the First Amendment. Throughout this episode, she and her paper took what appeared to be an absolutist position against cooperating with subpoena-wielding prosecutors who yearn to poke around newsrooms--while other reporters accommodated Fitzgerald. Now Miller and the Times have also elected to cooperate. But what distinguishes her case is that it seems she went to jail because of a mistake.

Upon her release, Miller declared she had been imprisoned because "a journalist must respect a promise not to reveal the identity of a confidential source." She added, "I am leaving jail today because my source has now voluntarily and personally released me from my promise of confidentiality regarding our conversations relating to the Wilson-Plame matter." This source was Libby. But a lawyer for Libby, Joseph Tate, told The Washington Post on Friday that a year ago he had informed Floyd Abrams, an attorney for Miller, that Libby had waived confidentiality and that Miller was free to discuss her chats with Libby. (The New York Times account of this--which presumably was heavily lawyered--is rather convoluted; if you want to avoid a headache, stick to the Post piece.) Only a few weeks ago, Tate said, he was contacted by Robert Bennett, another Miller attorney, and was told that Miller had not accepted Libby's waiver and was in jail protecting Libby. Tate claimed he and Libby were "surprised to learn we had anything to do with her incarceration." The lawyers for Libby and Miller arranged a phone call between the two, in which Libby apparently assured Miller his year-old wavier was voluntary. Then she and the Times negotiated a deal with Fitzgerald.

This suggests that Miller ended up going to jail due to a miscommunication. Could she had avoided jail had the lawyers done a better job? Was she a martyr because of a mistake? Her position now is the same as the other reporters who are known to have cooperated with Fitzgerald: if the source waives protection, then a reporter can talk. Her crusade is over.

But back to the fall guy. The end of this sub-plot has caused Libby's team to leak his defense to the media. The Post quotes "a source familiar with Libby's account of his conversations with Miller." The odds are that source is Libby or his attorney. This super-secret source says that on July 8, 2003, Miller and Libby talked. This was six days before columnist Bob Novak disclosed the CIA identity of Valerie Wilson and two days after former Ambassador Joseph Wilson wrote an explosive Times op-ed disclosing that his trip to Niger in February 2002 had led him to conclude that President Bush had falsely claimed that Iraq had sought weapons-grade uranium in Africa. In this conversation, Miller asked Libby why Wilson had been sent on this mission by the CIA. (Miller, whose prewar reporting had promoted the administration's case that Iraq was loaded with WMDs, had a personal, as well as professional, interest in Wilson's tale.) Libby, according to this source, told Miller that the White House was, as the Post puts it, "working with the CIA to find out more about Wilson's trip and how he was selected." Libby noted he had heard that Wilson's wife had something to do with it but he did not know where she worked.

Four or five days later, according to the Libby-friendly source, Libby and Miller spoke again. Now Libby knew more. He told Miller that Wilson's wife worked at the CIA and had a role in sending Wilson to Niger. This source tells the Post that Libby did not know her name or that she was an undercover officer at the CIA. That latter point is crucial, for, under the Intelligence Identities Protection Act, Fitzgerald can only prosecute Libby if Libby disclosed information about a CIA officer whom he knew was a covert employee.


Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on Howard Dean and the Roberts vote, politics-by-demonstration, Bill Frist, a rightwing cat fight, Bush's photo-opping and other in-the-news matters.


There's no telling whether this source is being truthful. Karl Rove's attorney put out facts that crumbled as more information became public. But you don't have to look too far between the lines to discern Libby's cover story. It goes something like this: Wilson wrote his Times article. All hell broke loose. The White House asked, "Who authorized this trip?" Someone called the CIA for information. The CIA reported back that Wilson was contacted by the counter-proliferation office, where his wife Valerie was working. But--and here's the crucial "but"--the CIA did not tell the White House that Valerie was undercover. Thus, if any White House officials--say, Rove or Libby--repeated this information to reporters, then they may have been engaged in leaking classified and sensitive information to discredit a critic but they were not committing a crime. And who was at fault? George Tenet, the CIA director at the time.

How convenient. Tenet has already taken the fall for Bush's decision to launch the war in Iraq. He reportedly told Bush that the WMD case was a "slam-dunk." And subsequent investigations--from the Republican-controlled Senate intelligence committee and an independent commission that only looked at the intelligence community, not the White House--have excoriated Tenet's CIA for botching the WMD job. (Still, Bush saw fit to give Tenet a nice medal.)

Tenet is finished in Washington. (Paul Wolfowitz got a medal and was given the top job at the World Bank.) Is Libby looking to point to the dead body in the room and say, "It was him!"? If Libby or any other top White House aide wanted to know what had happened at the CIA regarding Wilson's trip to Niger, what would he or she have done? The obvious answer is that he or she would have called Tenet and demanded answers. And if Tenet--when he or an aide reported back--did not tell the White House Valerie Wilson was undercover, that would not be the White House's fault, right? In this scenario, the CIA outed Valerie Wilson.

Can such a defense fly? It will depend on what facts--or purported facts--Libby and the White House present to the prosecutor (or, if indictments ever come, to a jury). But a CIA-did-it defense might be in the making. And that has worked for this White House before.

All this speculation aside, the public record does show that both Rove and Libby spoke to several reporters (Novak, Miller and Time's Matt Cooper-- about Valerie Wilson and her CIA job. Wittingly or not, they disclosed classified information that derailed her career and that undermined her past and present work to thwart the proliferation of weapons of mass destruction. These leaks might have imperiled her contacts, previous operations, and one or more front groups used by her and her colleagues in their efforts to stop the spread of WMDs. (No damage assessment of the Plame leak has been made public.) At the least, contrition is warranted. But there has been none from the WHite House. And Bush's previous vow to dismiss anyone caught leaking classified information has been tossed into the waste bin, now that it is undeniable that Rove and Libby leaked classified information.

When Fitzgerald first pursued Miller and Cooper, it was easy to dismiss him as an overzealous prosecutor interested more in a vendetta than in making a case. But as the Cooper portion of this episode demonstrated, Fitzgerald was after information crucial to his investigation. From Cooper he obtained material that showed Rove had discussed the CIA identity of Wilson's wife with a reporter. Though Fitzgerald and Miller have clashed on non-Plame business previously, perhaps he has been seeking information just as critical from her.

For anyone following the matter, it's impossible not to guess about what's going on and what Fitzgerald will do. His grand jury expires at the end of October. He could impanel a new one and keep investigating. But all indications suggest he's close to done. One person who recently had contact with Fitzgerald and his attorneys says that they seem confident about whatever it is they are pursuing. The Miller matter was something of a sideshow that at times drew more attention than the central issue. Now that Miller has decided to follow the course of the other reporters, perhaps Fitzgerald will be ready to end his inquiry and render decisions about indictment. Throughout Washington, those who have closely observed this investigation express different hunches about whether there will be indictments, about whom will be indicted if there are indictments, about what laws will be invoked if there are indictments. There have been no leaks making one guess more probable than another. Those who care are all waiting for Fitzgerald.