Washington: a city of denials, spin, and political calculations. The Nation's former DC editor David Corn spent 2002-2007 blogging on the policies, personalities and lies that spew out of the nation's capital. The complete archive appears below. Corn is now the DC editor at Mother Jones.
Was Harriet Miers Borked?
Ever since Robert Bork, a right-wing darling nominated by Ronald Reagan to the Supreme Court, was defeated by a passionate lobbying campaign waged by liberal groups, conservatives have turned his name into a verb with a derogatory meaning, as in, Those Democrats are Borking yet another judicial nominee to appease the special-interest groups on the left.
But Miers, who withdrew from consideration as a Supreme Court justice just days after George W. Bush said her nomination would go forward, must feel a little Borked herself. And her Borkers were fellow Republicans and conservatives, the same folks who once decried Borking as a danger to the Republic.
Miers' detractors on the right will say that they merely waged a crusade based on principles. They did not believe she was qualified for the job, and even though she was nominated for the position by a president they support and appeared likely to vote in a conservative manner, they took the difficult road of opposing her and Bush, citing an allegiance to ideals that transcend partisan loyalty.
True. And foes of Bork were also motivated by devotion to principles and ideals. But the Miers critics deployed tactics that conservatives had previously associated with Borking They didn't just state their opposition to Miers and engage in polite discourse; they mounted a political campaign. The anti-Miers outfit started by former Bush speechwriter David Frum, a neocon, aired negative ads targeting Miers on the Fox News Channel. Anti-Miers partisans seemed to have circulated negative information about her within the media. Stories have appeared about a payment her family--not Miers herself--received for a piece of land needed for a highway ramp that was 18 times the assessed value of the property. Vapid columns she had written years ago showed up in the hands of columnist David Brooks, who pummeled her. Conservatives have employed excessive rhetoric to denounce her. Right-wing columnist Rod Dreher wrote,
American conservatism is in a crisis at the moment because the bizarre Harriet Miers nomination imposes a surreality check on the right, forcing us to consider just how much nonsense we've had gone along with for the sake of party discipline.
Wendy Wright, executive vice president of Concerned Women of America, exclaimed,
Every time she quotes or cites a women she admires, they're to the left of Betty Friedan.
Wright was referring to speeches in which Miers once--during the confirmation process of Justice Ruth Bader Ginsburg--praised Ginsburg's courage and once suggested that then-Governor Ann Richards of Texas might someday be elected vice president or president. Days ago, one leader of the Federalist Society, the central command for conservative legal activists, declared that if Miers wanted to prove she was a real conservative, she would withdraw.
When Bork, a leader of the get-Harriet gang, was asked last week by CNN's Wolf Blitzer whether Miers deserved the benefit of the doubt, at least until her confirmation hearings, he huffed, "What doubt?"
Moreover, conservatives often blast Democrats for voting against judicial nominees because they are afraid to buck liberal activist groups. They seem to think there is something wrong in responding to constituencies. But anti-Miers right-wingers were pressuring Republicans to vote against Miers and threatening that if a Republican senator did not do as they liked there would be a price to pay. In an October 23 column, George Will opined,
As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion--or who does not recognize the Miers nomination as such--can never be considered presidential material.
Take that, Senator George Allen. Here was Will warning Republican senators that they had better do what he, Kristol, Krauthammer, Frum and others think best...or else.
I don't believe Will was wrong to issue such a threat. The anti-Miers cons were not wrong to denounce her nomination and to campaign against it. They were not wrong to express themselves fully and passionately. They were not wrong to go looking for negative information on her They were not wrong to spread such material (as long as it was accurate). If they wanted to depict this nomination as a "crisis"--for conservatism, the country or both--that was their prerogative. They were not wrong to oppose her with much force and vigor (and they do deserve a measure of respect for placing principle over politics). But neither were the liberals wrong to oppose Bork in a fiery manner.
There are certainly differences between the Bork and Miers cases. (He was a legal scholar; she was not.) But those who care about the court are entitled to fight for what they believe, and that includes ardently opposing a nominee whom they feel would not serve the nation well. Perhaps it is time to retire Bork the verb.
Big news. The New York Times is reporting that notes taken by Scooter Libby show that he learned of Valerie Wilson's employment at the CIA from his boss, Dick Cheney. These notes contradict Libby's testimony to the grand jury that he had first heard of Valerie Wilson from journalists. The paper that brought us Judy Miller reports:
WASHINGTON, Oct. 24 -- I. Lewis Libby Jr., Vice President Dick Cheney's chief of staff, first learned about the C.I.A. officer at the heart of the leak investigation in a conversation with Mr. Cheney weeks before her identity became public in 2003, lawyers involved in the case said Monday.
Notes of the previously undisclosed conversation between Mr. Libby and Mr. Cheney on June 12, 2003, appear to differ from Mr. Libby's testimony to a federal grand jury that he initially learned about the C.I.A. officer, Valerie Wilson, from journalists, the lawyers said.
The notes, taken by Mr. Libby during the conversation, for the first time place Mr. Cheney in the middle of an effort by the White House to learn about Ms. Wilson's husband, Joseph C. Wilson IV, who was questioning the administration's handling of intelligence about Iraq's nuclear program to justify the war.
Lawyers said the notes show that Mr. Cheney knew that Ms. Wilson worked at the C.I.A. more than a month before her identity was made public and her undercover status was disclosed in a syndicated column by Robert D. Novak on July 14, 2003.
Mr. Libby's notes indicate that Mr. Cheney had gotten his information about Ms. Wilson from George J. Tenet, the director of central intelligence, in response to questions from the vice president about Mr. Wilson. But they contain no suggestion that either Mr. Cheney or Mr. Libby knew at the time of Ms. Wilson's undercover status or that her identity was classified. Disclosing a covert agent's identity can be a crime, but only if the person who discloses it knows the agent's undercover status.
It would not be illegal for either Mr. Cheney or Mr. Libby, both of whom are presumably cleared to know the government's deepest secrets, to discuss a C.I.A. officer or her link to a critic of the administration. But any effort by Mr. Libby to steer investigators away from his conversation with Mr. Cheney could be considered by Patrick J. Fitzgerald, the special counsel in the case, to be an illegal effort to impede the inquiry.
No wonder Libby may be in a mess of trouble. It's not only that his testimony might not have lined up with that of Judy Miller or that he might have encouraged her to testify in a manner to absolve him. He may have not come clean with Fitzgerald in an attempt to protect Cheney and to keep the veep out of the line of fire. If this is the case, did Cheney--or anyone else at the White House (Bush included)--know that Libby was not testifying truthfully to the grand jury to save Cheney? Would that knowledge imply consent? Conspiracy? This scandal just got uglier and even more threatening for Cheney.
A reader has sent me this query:
One thing that the Times misses is that, if Libby covered up this conversation with Cheney is it not likely that Cheney did as well when he gave sworn testimony to Fitzgerald? These two guys are smart enough to try to get their story straight if they are going to lie. If so, it appears that Cheney would be in equal jeopardy of a perjury or obstruction charge. No?
Cheney did talk to Fitzgerald in the summer of 2004, but this was not sworn testimony. Still, one critical question is whether Cheney told Fitzgerald the truth and acknowledged that he had learned of Valerie Wilson and her CIA employment (apparently from the CIA) and then passed the information to Libby. If Cheney purposefully did not tell Fitzgerald the truth--even if he was not under oath--he might be vulnerable to an obstruction of justice charge or perhaps other charges. (I am no lawyer.) But this new development raises the possibility of an orchestrated cover-up that reaches the vice president. Remember the "unindicted coconspirators" of the Watergate days? Who would believe the waiting-for-indictments period could become more intense?
Even on the weekend, our obsession with the Plame/CIA leak scandal--and the Judy Miller sideshow--doesn't end. Here's a piece I posted on my blog at www.davidcorn.com.
The wheels of The New York Times turn slowly, but perhaps they are moving in the right direction. On Friday, executive editor Bill Keller sent out a memo in which he offered a "first cut" at the "lessons we have learned" from the Judy Miller mess. The memo was no defense of Miller and the Times.
To his credit, Keller starts with the original sin in the Miller scandal: her problematic prewar reporting on Iraq's WMD, which relied too heavily on administration and Iraqi exile sources and which, consequently (and perhaps purposefully) hyped a nonexistent threat. Keller, who was not the top editor when Miller ran amok on this story, wrote,
I wish we had dealt with the controversy over our coverage of WMD as soon as I became executive editor. At the time, we thought we had compelling reasons for kicking the issue down the road. The paper had just been through a major trauma, the Jayson Blair episode, and needed to regain its equilibrium. It felt somehow unsavory to begin a tenure by attacking our predecessors. I was trying to get my arms around a huge new job, appoint my team, get the paper fully back to normal, and I feared the WMD issue could become a crippling distraction.
So it was a year before we got around to really dealing with the controversy. At that point, we published a long editors' note acknowledging the prewar journalistic lapses, and--to my mind, at least as important--we intensified aggressive reporting aimed at exposing the way bad or manipulated intelligence had fed the drive to war. (I'm thinking of our excellent investigation of those infamous aluminum tubes, the report on how the Iraqi National Congress recruited exiles to promote Saddam's WMD threat, our close look at the military's war-planning intelligence, and the dissection, one year later, of Colin Powell's U.N. case for the war, among other examples. The fact is sometimes overlooked that a lot of the best reporting on how this intel fiasco came about appeared in the NYT.)
By waiting a year to own up to our mistakes, we allowed the anger inside and outside the paper to fester. Worse, we fear, we fostered an impression that The Times put a higher premium on protecting its reporters than on coming clean with its readers. If we had lanced the WMD boil earlier, we might have damped any suspicion that THIS time, the paper was putting the defense of a reporter above the duty to its readers.
This is a serious admission. Might Keller feel his leadership at the TImes is in jeopardy? Or is he simply being a mensch? I do wonder why there has been no disciplining of Miller for her botched coverage of the WMD issue. Keller is acknowledging these "journalistic lapses" were significant and that they had a negative impact on the newspaper. So why were the people responsible for these mistakes not held accountable? After all, they caused more harm to the paper than did Jayson Blair.
Keller does not write about Miller's lead role in the WMD fiasco. But he does criticize her--and himself--for actions taken (and not taken) during the leak investigation. Keller notes that he was negligent by not fully examining Miller's involvement in the leak story and that he missed "significant alarm bells." He also says that Miller was not forthcoming with the paper and that she even misled an editor:
Until Fitzgerald came after her, I didn't know that Judy had been one of the reporters on the receiving end of the anti-Wilson whisper campaign. I should have wondered why I was learning this from the special counsel, a year after the fact. (In November of 2003 [Washington bureau chief] Phil Taubman tried to ascertain whether any of our correspondents had been offered similar leaks. As we reported last Sunday, Judy seems to have misled Phil Taubman about the extent of her involvement.) This alone should have been enough to make me probe deeper.
Indeed. He should have probed deeper. But what will Keller do, if anything, about Miller misleading Taubman? He doesn't say. And he insists that fighting Fitzgerald in court was still necessary, with this caveat:
if I had known the details of Judy's entanglement with [Scooter] Libby, I'd have been more careful in how the paper articulated its defense, and perhaps more willing than I had been to support efforts aimed at exploring compromises.
And Keller seconds an email sent by Richard Stevenson, a Washington correspondent for the newspaper, who wrote:
I think there is, or should be, a contract between the paper and its reporters. The contract holds that the paper will go to the mat to back them up institutionally--but only to the degree that the reporter has lived up to his or her end of the bargain, specifically to have conducted him or herself in a way consistent with our legal, ethical and journalistic standards, to have been open and candid with the paper about sources, mistakes, conflicts and the like, and generally to deserve having the reputations of all of us put behind him or her.
The implication here, of course, is that Miller did not hold up her end of that bargain. And Keller seems to be agreeing with that. So what might be her future at the paper? Keller provides no hint, and he notes that he and the top editors of the Times will continue to wrestle with the remaining issues "in the coming weeks."
For anyone rooting for the Times to remedy the Miller problem, Keller's memo was more encouraging than the articles the paper published a week ago. But, curiously, Keller did not address one of the key credibility issues created by the Miller controversy. In her first-person account--which ran last weekend and which her attorney, Robert Bennett, now says the Times forced her to publish against his advice to her--Miller noted that she agreed to Libby's request to be identified as an anonymous "former Hill staffer" when he was passing her negative information on former Ambassador Joseph Wilson. That is, Miller colluded with a senior White House official--Dick Cheney's chief of staff--to camouflage a White House attack on Wilson, a critic of the administration. This violated the Times' rules for anonymous sourcing. (Reporters are supposed to identify an anonymous source with as much information as possible so readers can determine if the source is pushing an agenda.) Put aside Miller's sloppy and misleading mission-driven WMD coverage, her inability to remember which source told her about "Valerie Flame," her suspicious discovery of a notebook referencing a conversation with Libby she had not originally told the special prosecutor about, and the gap between her absolutist, fighting-for-a-principle rhetoric about her imprisonment and the fact that she had tried to negotiate a compromise to avoid going to jail, the episode in which she offered to mislead her readers about a White House source to facilitate an administration assault on a policy critic, is the most clear-cut example of Miller's bad behavior. Yet, as far as I can tell, Keller and the Times have not acknowledged this piece of the Miller mess.
Still, Keller's memo is evidence that he finally comprehends what a jam Miller created for the newspaper and that he understands the troubles began before Fitzgerald came knocking. This is progress. And it's no accident that the day after Keller circulated his memo, The Washington Post ran a piece by Howard Kurtz--headlined, "A Split The Times & Miller"--that quoted Bennett, Miller's lawyer, bitching about the Times. The article notes that Miller would not cooperate with the Times reporters working on the paper's account of the Miller case until 24 hours before the deadline for the story. And Bennett downplayed the significance of Miller's inability to remember the first conversation she had with Libby about Joseph Wilson (in which Libby may have mentioned Wilson's wife, the undercover CIA official, weeks before she was outed in a July 14, 2003 Bob Novak column.) The fact that Bennett (and apparently Miller, too) felt it was necessary for Bennett to defend Miller after Keller had disseminated his memo is a sign that the kinship Keller and Miller displayed in public when they were presenting her as a Joan of Arc for modern-day journalism has deteriorated. (And see Maureen Dowd's acerbic slam at Miller in Saturday's Times, in which she opines that if Miller returns to the newspaper after her book leave is done untold damage will ensue.) Perhaps this will allow Keller to remedy further the problems that Miller has caused for his paper. Perhaps denial has transformed into acceptance, and Keller and the paper are ready for hard work of recovery.
TRUSTING LIBBY. Thanks to Michael Isikoff for the shout-out. On HuffingtonPost.com, he writes,
Forget the aspens turning in clusters--or, for at least the next couple of days, the prospect of indictments. (Nothing, it now seems, until next week.) The real story of last weekend's Judy Miller revelations is not what Scooter Libby may have told her about Joe Wilson's wife. It is how Libby clearly, and unequivocally, misrepresented the contents of the classified National Intelligence Estimate (NIE) about Iraqi WMD. Save for the estimable David Corn of the Nation, nobody has picked up on this. But it's huge. At a time when questions about the Bush administration's case for war were beginning to mount, Libby assured Miller: Don't worry, there's still secret stuff out there that will prove we were right all along. As a Washington reporter who frequently writes about intelligence matters, I can assure you, this is the way it always works: "Trust me," the high level government official will tell you, "if you knew what I knew--if you could read the top secret reports I've read--you'd know why we're doing this." Only in this case, we know what Libby told Miller at their two hour breakfast at the Ritz Carleton Hotel on July 8, 2003, wasn't true.
For Isikoff's full examination of how Libby tried to mislead Miller (who seems to have been rather willing to be misled) about the prewar intelligence, see his "Terror Watch" column (written with Mark Hosenball) here.
In a story posted on Tuesday night, The New York Times, citing unnamed government officials, said that special counsel Patrick Fitzgerald, "is not expected to take any action" in the CIA leak case this week. That's good news for me; I have tickets to see U2 on Wednesday night. But it's also bad news, I am scheduled to go to Arkansas at the end of next week to deliver a speech at Arkansas State University-Jonesboro. (Longtime readers of this blog will recall that I was supposed to speak at Arkansas State University-Mountain Home last April but then the gig was canceled for what appeared to be political reasons. But after a mighty controversy erupted--in which the state legislature decried this apparent act of censorship--the faculty senate at ASU-Jonesboro voted for a resolution requesting that I be invited to speak at the Jonesboro campus, the main hub of the ASU system. The president of ASU took the faculty's recommendation, and I accepted his invitation.) So I am now hoping that if anything happens it happens early next week. The grand jury is scheduled to expire October 28, and lawyers tell me that most prosecutors do not like to wait until the last day of a grand jury's term to announce indictments. But it's possible. It's also possible that new information could cause Fitzgerald to extend his inquiry and impanel a new grand jury. Bottom line: we don't know. On Tuesday, The Washington Post reported Fitzgerald might announce his findings on Wednesday. The Times then reported that would not be likely. What's your hunch?
Most of the Times piece was devoted to the question of whether Fitzgerald would issue a report if he declines to indict anyone. In the old days--that is, when there was an independent counsel law--independent counsels were obligated to issue final reports detailing what they had uncovered and explaining any decisions not to prosecute. Fitzgerald is not an independent counsel but a special prosecutor, appointed in 2003 by then-Deputy Attorney General James Comey because Attorney General John Ashcroft had recused himself. With the independent counsel law expired, there can no longer be independent counsels. Consequently, Fitzgerald is not required to file a final report.
But can he produce such a report if he would like to? As the Times notes, there is a debate among legal experts as to whether he has the authority to do so. Fitzgerald has obtain much of his information through the grand jury process, and grand jury proceedings are supposed to be secret. Some lawyers believe Fitzgerald could issue a report, especially if requested by Congress; others think Justice Department regulations would prohibit that. But you can guess how the political appointees at the Justice Department would interpret the regulations. And would any Republican leaders of Congress ask Fitzgerald for a report? With the Bush administration and congressional Republicans not keen to have a full accounting, it could be difficult for Fitzgerald--if he wants to produce a report--to win a tussle over how to read the regulations. As for whether Fitzgerald wishes to issue a final report, his office has declined to comment on this matter (or any other matter).
Since the start of the leak investigation I have asked congressional Democrats if they were prepared to pressure the administration regarding a final report in this case. A few--most notably, Senator Chuck Schumer--have called for the production and release of such a report. But the Democrats generally have not made this a priority item. That was a strategic misstep. Should Fitzgerald not indict anyone--or should he issue limited indictments--the Democrats (and many within the public) will still yearn for a full accounting of the investigation. Yet demanding a final report after Fitzgerald has made his decisions regarding indictments could look like sour grapes. Republicans will likely argue, "you sore-looser Democrats didn't get the indictments you wanted, so now you're trying to perpetuate this controversy by asking for a report that a special prosecutor is not supposed to release." The Democrats needed to mount a high-profile push for such a report before the end of FItzgerald's investigation. But they have missed their chance.
Final reports from independent counsels in the past have been quite useful. Independent counsel John McKay investigated Edwin Meese, Ronald Reagan's attorney general, and brought no indictments against him. But in his final report, McKay detailed a series of suspicious actions conducted by Meese. Lawrence Walsh, the independent counsel who investigated the Iran-contra affair, released a report rich with details about government officials who were indicted and those who were not. In his report, he included material indicating that Colin Powell on two separate occasions, when he was providing sworn testimony, offered contradictory accounts regarding the notes of Caspar Weinberger, Reagan's defense secretary. Powell had been an assistant to Weinberger. The existence of Weinberger's notes was a critical topic for the Walsh's investigation. and Powell seemed to have changed his story to help Weinberger's legal defense. In his report, Walsh noted he did not have enough evidence to charge Powell with any crime, such as providing false information to Congress. Yet because Walsh outlined this episode in his final report, I was able to report this story. (I was the first journalist--and one of the few--to note Powell's shifting account and his near-indictment. After I broke this news, CNN produced a segment on this story. Then executives in Atlanta killed the piece.)
Final reports can be quite valuable--but only if they are written. If Fitzgerald does not bring wide-ranging indictments that tell the full story, a report-less investigation will not provide a complete accounting. Oddly, it seems that on Tuesday, the White House endorsed the need for a final report. Press secretary Scott McClellan defined a successful completion of the investigation as one in which Fitzgerald would "determine the facts and then outline those facts for the American people." As the Times reports:
Asked if that meant the White House would favor a public report if there were no indictments, Mr. McClellan said that the decision was Mr. Fitzgerald's, but that "we would all like to know what the facts are."
Do you think Bush truly wants to see all the facts placed before the American public? But on this point Fitzgerald and the Justice Department should take McClellan at his word.
Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on Harriet Miers, the Karl Rove scandal and other in-the-news matters.
BUSH KNEW OF THE COVER-UP? In Wednesday's New York Daily News, Washington bureau chief Thomas DeFrank has an important story--but much of it is between the lines. He writes:
An angry President Bush rebuked chief political guru Karl Rove two years ago for his role in the Valerie Plame affair, sources told the Daily News.
"He made his displeasure known to Karl," a presidential counselor told The News. "He made his life miserable about this."
Bush has nevertheless remained doggedly loyal to Rove....
Waitaminute! Two years ago, the White House--via McClellan--definitively declared that Rove was not "involved" in the CIA leak. But if Bush at some point upbraided his guru about the leak that means (a) Bush knew that Rove was involved and (b) Bush countenanced McClellan's dissemination of a false cover story. This is evidence that Bush was a party to the attempted White House cover-up and that Bush might have directly lied about the issue. On September 30, 2003, he was questioned by reporters about the leak investigation. Here's an excerpt:
Q: Yesterday we were told that Rove had no role in it--
The President: Yes.
Q: Have you talked to Karl and do you have confidence in him?
The President: Listen, I know of nobody-- I don't know of anybody in my administration who leaked classified information. If somebody leaked classified information, I'd like to know it, and we'll take the appropriate action.
Was Bush in this exchange reaffirming McClellan's claim that Rove was not involved? That seems to be the case. Did Bush know at this time that Rove was involved in the leak? The Daily News story does not say when Rove spoke to Bush. Has Bush taken "appropriate action" against Rove? (The information that Rove shared with reporters--Valerie Wilson's employment status at the CIA--was classified.) There is no public indication "appropriate action" occurred.
Is it possible that one White House aide is now leaking a false story of Bush chastising Rove in order to distance Bush from the under-fire Rove? DeFrank reports:
Other sources confirmed...that Bush was initially furious with Rove in 2003 when his deputy chief of staff conceded he had talked to the press about the Plame leak.
If DeFrank got this right, he has a bigger scoop than the paper seems to have realized. His article does not note that these accounts from White House aides indicate that Bush knew the White House had lied in its public statements about the leak scandal.
Ever since evidence emerged this summer that showed Rove had discussed Valerie Wilson's CIA position with reporters, one question has been whether Rove had acknowledged his role in the leak to Bush. The Daily News reports:
A second well-placed source said some recently published reports implying Rove had deceived Bush about his involvement in the Wilson counterattack were incorrect and were leaked by White House aides trying to protect the President."
But if Rove did not deceive Bush, then Bush was a party to the Rove-was-not-involved lie promoted by his White House. And this raises the question of what Bush did after Rove told him of his involvement. Bush certainly didn't do anything to correct the public record. I wonder if McClellan wants to see a chapter in a final report on Bush and Rove's conversations about the leak and how Bush responded.
UPDATE: The White House, according to CNN, is claiming the Daily News story is inaccurate.
Finally, the New York Times and Judith Miller speak, and the paper and reporter leave their readers with as many questions as answers. In Sunday's edition, the Times publishes a lengthy account by three reporters (Don Van Natta Jr., Adam Liptak and Clifford Levy) of what it calls "the Miller case" and a first-person account by Miller. Neither piece explains all.
Miller spent eighty-five days in a federal prison after she refused to cooperate with special prosecutor Patrick Fitzgerald, who has been investigating the Bush Administration leak that outed undercover CIA officer Valerie Wilson, the wife of former Ambassador Joseph Wilson, a critic of the Bush White House. She was released from jail after she received a personal waiver from a confidential source, Scooter Libby, Dick Cheney's chief of staff, that granted her permission to discuss their conversations with Fitzgerald. With that waiver in hand, she cut a deal with Fitzgerald that limited his questioning only to her discussions with Libby (not other sources) and that compelled Miller to turn over her notes of these conversations with Libby.
The denouement of Miller's legal tussle with Fitzgerald was rather puzzling. Libby's lawyer indicated that Miller could have had the personal waiver a year earlier. And after Miller and the Times had spent months crowing that Miller--unlike other reporters--would stand on principle and not submit to Fitzgerald's zealous pursuits, her final settlement with Fitzgerald (which resembled that of the other reporters) was not in sync with the grand we're-protecting-journalism rhetoric the Times and Miller had hurled. Moreover, there were new and old questions about Miller's involvement in the case. Why had Fitzgerald subpoenaed her? How did it come to happen that she only recently discovered a notebook containing notes of Miller's first conversation with Libby about Joseph (and possibly Valerie) Wilson? What had Libby told her? What sort of relationship did she have with Libby? Was Miller eager to discredit Wilson because her prewar reporting on Iraq's WMDs had overstated and hyped the claim that Saddam Hussein presented a WMD threat?
The Times's double-header does not clear up all the mysteries. Let's start with Miller's article, "My Four Hours Testifying in the Federal Grand Jury Room." Miller does not explain the disappearance and discovery of a notebook that contained notes of a June 23, 2003, conversation she had with Libby. This chat occurred two weeks before Wilson published an op-ed piece for the Times in which he revealed that after being sent to Niger in 2002 by the CIA he had concluded that it was highly unlikely that Iraq had been able to obtain weapons-grade uranium there. For weeks, Wilson had been talking to reporters--off the record--about his trip to Niger, and media stories regarding the trip had appeared without naming Wilson as the former diplomat who had gone on this mission.
Miller's account of the June 23, 2003, discussion with Libby indicates that the White House was already looking to discredit Wilson's account prior to Wilson going public with his story--and that this was part of a White House effort to protect itself from intelligence leaks suggesting that the Bush Administration had played up the prewar intelligence on WMDs in Iraq. This was, of course, occurring at a time when the absence of WMDs in Iraq was becoming a problem for the White House. It is not surprising that Libby tried to peddle to Miller the argument that the White House had not relied on skimpy intelligence to go to war. And in this conversation, according to Miller, Libby told her that Wilson's wife worked at the CIA.
How did Libby know this? Why did Libby know this? Miller may not possess the answers to these critical questions. But Valerie Wilson's employment status at the CIA was classified information. Wittingly or not, Libby was passing classified information to a reporter whom he obviously hoped would be sympathetic to the White House's cause.
In a second meeting on July 8, 2003--two days after Wilson's op-ed appeared--Libby and Miller again discussed Wilson. Once again, Libby was telling Miller that the White House had based its claim that Iraq had been seeking uranium in Niger on solid intelligence. Miller writes that Libby cited the National Intelligence Estimate on Iraq produced in October 2002 and said it had firmly concluded Iraq had been pursuing uranium. (It seems that Libby did not tell Miller that this NIE contained a dissent from the State Department's Bureau of Intelligence and Research (INR), which said, "the claims of Iraqi pursuit of natural uranium in Africa are, in INR's assessment, highly dubious.") At this meeting, Libby again referred to Wilson's wife, apparently telling Miller, according to her notes, that she "works at Winpac," the CIA office on Weapons Intelligence, Nonproliferation and Arms Control.
Miller says she told Fitzgerald's grand jury that she believes this is the first time she had heard that Wilson's wife worked at Winpac. But she cannot recall--she says--why Libby was discussing Wilson's wife. That seems strange. It's not odd that someone would not recall the details of a conversation that happened two years ago. But six days after this conversation--when Novak outed her--Valerie Wilson was big news. Did Miller--who now says she was annoyed she had been scooped on the Plame/Wilson story by Novak--at that point not recall her six-day-old conversation with Libby on this matter and not develop a deeper impression of the portion of their chat that covered Valerie Wilson?
There's more on this point. In the notebook in which she recorded her notes from this meeting with Libby, Miller wrote the words "Valerie Flame." Clearly, this was a reference to Valerie Plame. Was Libby the source for this name? Miller says she does not think so and that she told Fitzgerald "I believed the information came from another source, whom I could not recall." Again, it might be hard for a reporter to remember who told them what over two years ago. But isn't it difficult to believe that come July 14, 2003--the day the name Valerie Plame became public--Miller would not have recalled who had told her days earlier about this CIA officer? And isn't it hard to believe that she would no longer remember that?
There is something else odd about her July 8, 2003, discussion with Libby. When the subject turned to Wilson, Libby asked Miller that he be identified in any story she would write as a "former Hill staffer." Previously the two had agreed that Miller would refer to Libby as a "senior administration official." Now Miller agreed that she would ID him as a "former Hill staffer." (Libby had once worked on Capitol Hill.) She assumed, she writes, that "Libby did not want the White House to be seen as attacking Mr. Wilson." But this shows the dishonest game that reporters can play. Technically, Libby was a former Hill staffer, but he was talking to Miller--and trying to undermine Wilson's account--as a White House official. Calling Libby a "former Hill staffer" in print would have been highly misleading. (Miller never did write a piece on Wilson.) Is this how the Times plays ball? This small slice of Miller's piece deserves a response from executive editor Bill Keller.
In a notebook that chronicled a third pre-leak conversation with Libby--which transpired on July 12, 2003--Miller scribbled the words "Victoria Wilson." Miller writes, "I told Mr. Fitzgerald I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity." She says she might have been calling others about Wilson's wife, but she is not sure on this point. There is a lot of don't-know in her account. Can Miller not answer a simple question: Did you know Joseph Wilson's wife was named Valerie Wilson (or Plame) and did counter-WMD work at the CIA before Novak published his column? If so, how did you learn this?
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Miller's piece, fittingly, ends on a weird and uncertain note. When she was before the grand jury, she recalls, Fitzgerald asked her to read from a letter that Libby sent her last month while she was in jail. The letter encouraged her to testify and said, "The public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me." Miller told Fitzgerald that she was surprised by the letter because it might be perceived as an attempt by Libby to encourage her to testify that she had not discussed Valerie Wilson's CIA identity with him even though they had. Fitzgerald asked Miller about the letter's closing lines. "Out West," Libby had written, "where you vacation, the aspens will be turning. They turn in clusters, because their roots connect them." What, Fitzgerald wondered, did Miller make of this reference to connected roots? In her Times piece, Miller says she answered Fitzgerald by recalling the last time she had seen Libby. In August 2003, she was at a rodeo in Jackson Hole, Wyoming, and a man in jeans, a cowboy hat and sunglasses approached her and asked her about a conference she had just attended in Aspen, Colorado. She had no idea who this fellow was. "Judy," he told her. "It's Scooter Libby." And that was--literally--all Miller wrote.
This may be a nice anecdote for ending an article, but it hardly was responsive to Fitzgerald's question. As for her readers, Miller fails them by not providing a clearer answer. Why did an editor not send this page back to Miller with the query: "Funny bit, but irrelevant; tell reader what you think odd sign-off in Libby letter means"? But given the article Miller has produced, it is, in a way, an appropriate conclusion.
The news story that appears in the Times is less exasperating. But it too leaves one wanting more. It doesn't tell the reader anything else about the missing notebook, the "Valerie Flame" reference, or Miller's dealings with Libby. In a section covering Miller's history at the paper, the story quotes Miller on her WMD stories:
"W.M.D.-I got it totally wrong," she said. "The analysts, the experts and the journalists who covered them--we were all wrong. If your sources are wrong, you are wrong. I did the best job that I could."
The paper did not note that there were experts and journalists before the war who were skeptical of the WMD claims. For instance, Mohamed ElBaradeii and the International Atomic Energy Agency said before the war that there was no evidence Iraq had revived its nuclear weapons program. The day after Colin Powell's infamous--and misleading--show at the United Nations, The Washington Post published several articles that quoted technical experts taking issue with his Powell's pronouncements. Miller was not wrong because everybody was wrong. She was wrong because she relied upon sources--administration officials, Iraqi exiles connected to Ahmed Chalabi--who had a reason to hype the WMD threat. But the Times gives her a pass on this, allowing her to spin away.
The triple-bylined article does not advance the story much beyond the account presented in Miller's piece. Regarding who else might have told Miller about "Victoria Wilson," this article has no additional information and only notes, "In an interview, [Miller] would not discuss her sources." Well, thanks for cracking that nut.
The article does dig slightly further into the dispute between Miller's legal camp and Libby's attorney over what happened during their negotiations. According to Miller, her attorney, Floyd Abrams, said that Libby's attorney, Joseph Tate, pressed Abrams to tell him what Miller would say to the grand jury should she testify. Abrams also claimed that Tate said that Libby had already testified that he had not mentioned Valerie Wilson's name or her undercover status to Miller. This raises the possibility that Libby was seeking to shape Miller's testimony, which could be illegal. Tate calls such an interpretation "outrageous." But the Times account does not sort this out as clearly as a reader--or a prosecutor--might like.
The Times story also further undermines Miller's attempt to become the Joan of Arc for modern-day journalists. The article notes that her attorneys had tried early on to arrange a deal under which Miller would testify before the grand jury if Fitzgerald limited the scope of the questions. In public, Miller and the Times management struck an absolutist and noble-sounding stance. But in the suites, they were trying to reach a compromise. The article also chronicles how the Times was constrained in covering the Miller case and Fitzgerald's investigation:
In August, Douglas Jehl and David Johnston, two other Washington reporters, sent a memo to the Washington bureau chief, Mr. [Philip] Taubman, listing ideas for coverage of the case. Mr. Taubman said Mr. Keller did not want them pursued because of the risk of provoking Mr. Fitzgerald or exposing Mr. Libby, while Ms. Miller was in jail.
Mr. Taubman said he felt bad for his reporters, but he added that he and other senior editors felt that they had no choice. "No editor wants to be in the position of keeping information out of the newspaper," Mr. Taubman said.
So much for without fear or favor. This is an awful acknowledgment for the nation's leading paper. Taubman and Jill Abramson, a managing editor, called the situation "Excruciatingly difficult." It was worse. As I've written before, Jayson Blair bamboozled his editors; Judy Miller handcuffed hers. If a deal could have been reached a year earlier, the Times would not be as embarrassed as it is today. No wonder, as the paper reports, when Miller made a post-release speech in the newsroom, claiming a victory for press freedoms, her colleagues "responded with restrained applause."
When the Times reporters interviewed Abramson and asked her what she regretted about the paper's handling of the Miller case, she replied, "The entire thing." That was a refreshing shot of candor. But Miller's account and the paper's extensive take-out do not totally clear the air. They leave the impression that we're still not getting all the news that ought to be fit to print.
As I noted previously, it has been interesting to watch Karl Rove's defense evolve. After the news broke in September 2003 that the CIA had asked the Justice Department to investigate the leak in Bob Novak's July 14, 2003, column that outed former Ambassador Joseph Wilson's wife, Valerie, as an undercover CIA officer, the White House declared that Rove and Scooter Libby, Dick Cheney's chief of staff, were not involved in the leak--no ifs, ands or buts. Speaking of Rove, White House press secretary Scott McClellan said, "He wasn't involved. The president knows hewasn't involved." The White House was signaling--rightly or wrongly--that it had no worries about its uber-strategist. And a year later, a White House aide who had just left his job at 1600 Pennsylvania Avenue told me that the consensus view within the Bush gang at that point was that Rove was too smart for special prosecutor Patrick Fitzgerald and that there was no reason for Rove to explain--or admit--anything. (One prominent Washington defense attorney said--after I recently mentioned this conversation--"only a fool would think he or she could outsmart a prosecutor.")
This past July, after Time agreed to turn over Matt Cooper's notes to Fitzgerald, Newsweek's Michael Isikoff revealed that Cooper had spoken to Rove about Joe Wilson. Responding to Isikoff's scoop, Rove's attorney, Robert Luskin, said that Rove "did not tell any reporter that Valerie Plame worked for the CIA." But a week later, Isikoff disclosed that Cooper and Rove had discussed Wilson's wife and her employment at the CIA and that an email from Cooper to his editors had confirmed this. And days later, news reports--probably relying upon Luskin as an unidentified source--disclosed that Rove had told Novak that he, like Novak, had heard that Wilson's wife was a CIA officer. All this undermined the Rove camp's claim that Rove never mentioned Valerie Plame and her CIA position to any reporter. (I supposed Luskin could argue that Rove, during his chats with Cooper and Novak, had not referred to Wilson's wife as "Valerie Plame.")
In the three months since, Rove's defense has shifted further. This week, Luskin told CNN that "Karl has truthfully told everyone who's asked him that he did not circulate Valerie Plame's name to punish her husband, Joe Wilson." (When CNN asked if that included George W. Bush, Luskin added, "Everyone is everyone.") This line--Rove did not circulate Plame's name to punish Joseph Wilson--is a far cry from the assertion that Rove did not tell any reporter that Valerie Plame was a CIA officer. It appears that Luskin and Rove are making up lyrics as the music changes. Rove detractors might find this legalistic squirming perversely enjoyable. But what's telling is a comparison between Rove's position (the current one) and that of his boss.
Two years ago, when Bush was asked about the Plame/CIA leak, he said:
I have told our administration, people in my administration, to be fully cooperative. I want to know the truth. If anybody has got any information inside our administration or outside our administration, it would be helpful if they came forward with the information so we can find out whether or not these allegations are true.
A journalist then asked:
Yesterday we were told that Karl Rove had no role in it. Have you talked to Karl and do you have confidence in him?
Listen, I know of nobody--I don't know of anybody in my administration who leaked classified information. If somebody did leak classified information, I'd like to know, and we'll take the appropriate action. And this investigation is a good thing....And if people have got solid information, please come forward with it....And we can clarify this thing very quickly if people who have got solid evidence would come forward and speak out. And I would hope they would....I want to know who the leakers are.
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By Rove's own admission--or that of his attorney--Rove did pass classified information (Valerie Wilson's employment status at the CIA was classified) to at least two reporters (Cooper and Novak). By Bush's statement, Rove deserves "appropriate action." Yet so far no "appropriate action" has apparently been taken. Why might that be?
Moreover, if Rove used his current defense--that he did not circulate the Plame name to punish Wilson--in his conversations with Bush, as Luskin suggested to CNN, then Rove engaged in insubordination. Bush had said that he wanted to know the truth and that anyone with information should "come forward and speak out." Did Rove do that? No. According to Luskin, Rove told people--including the president--that he did not circulate the name of Wilson's wife. This seems to indicate that Rove did not tell Bush that he actually had spoken to Cooper about Wilson's wife and that he had confirmed the leak to Novak--actions that Rove and Luskin apparently do not consider "circulating." In other words, Rove did not respond to Bush's public request for information. Bush said he wanted to know who the leakers were. Yet Rove, if Luskin is to be believed, only assured Bush that he had not disseminated Valerie Wilson's maiden name in an act of vengeance. That was not being responsive to Bush. That was not sharing the full truth with the president. That was being insubordinate.
Perhaps the latest version of Rove's defense is--shall we say--not fully accurate. Perhaps Rove told Bush more. That would mean that Bush knew the White House line--Rove ain't involved--was false and took no steps to better inform the public.
There is no way to reconcile Bush's statements on the leak investigation and Rove's new-and-improved defense. Rove disobeyed Bush's I-want-to-know command. And Bush has let this slide and tossed aside his vow to take "action" against the Plame/CIA leakers. The wait for indictments continues, but Rove is already guilty of spreading--if not circulating--classified information, and he is guilty of either disobeying the president or drawing him into a White House conspiracy to mislead the public. His continued presence at the White House indicates that Bush does not take his own words seriously.
The Plame/CIA leak case is getting what all good scandals need: props.
We now have the "missing notebook" and the "missing email." The "missing notebook," as several news reports noted at the end of last week, belongs to New York Times reporter Judith Miller and reportedly contains notes of a conversation regarding former Ambassador Joseph Wilson that she had with Scooter Libby, Dick Cheney's chief of staff, on June 25, 2003. The date is intriguing, for this is weeks before Wilson published his now famous New York Times op-ed piece (in which he revealed that after traveling to Niger for the CIA he had concluded that the allegation that Iraq had been uranium shopping there was dubious). And, of course, this was weeks before Robert Novak wrote a column outing Wilson's wife as an undercover CIA officer. So why were the two discussing Wilson at that point? Why did this notebook go missing within the paper's Washington bureau? Who found it? Miller or someone else? Why won't the Times explain to its readers how it came to be discovered? What do the notes in this notebook say?
The Case of the Missing Notebook does prompt much pondering. As Greg Mitchell of Editor & Publisher listed a set of questions raised by the missing notebook in his own column:
-- Did Libby lie to the grand jury about not talking to Miller about Wilson earlier than July 8? Did Miller lie about that? If so, why?
-- How did Fitzgerald find out about these notes? Did he know about the June conversation for quite some time but just recently found out about the notes? Or did Miller come forward herself? If she did, was it after someone tipped off Fitzgerald about the June interview?
-- Does the existence of a Miller chat with Libby two weeks before the Wilson Op-Ed, and well before Robert Novak outed Wilson's wife, Valerie Plame, as a CIA agent, indicate that Libby, indeed, was the original source of the Plame leak? And/or does it suggest that Miller herself was a "carrier" of that leak to others in the media and the administration, well before Novak's bombshell?
What is frustrating is that the Times could have quickly cleared up a number of these matters. But it chose not to. So the final question on this front is, why?
On to the other new prop. This past weekend, Newsweek's Michael Isikoff reported that Karl Rove's return to the grand jury (for visit No. 4) was caused by the "White House's handling of a potentially crucial e-mail sent by senior aide Karl Rove two years ago." Apparently, when Rove was first interviewed by FBI agents and when he first appeared before Patrick Fitzgerald's grand jury, he neglected to mention his July 11, 2003, conversation with Time's Matt Cooper, in which he told Cooper that Wilson's wife worked at the CIA. But after that first grand jury appearance, Rove's lawyer, Robert Luskin, according to Isikoff's report, found an email Rove had sent on July 11 that referred to his conversation with Cooper. Rove then went back to the grand jury to discuss his July 11 chat with Cooper. I suppose Rove merely needed to have his memory refreshed.
The Newsweek report doesn't make clear what this missing email has to do with Rove's latest trip to the grand jury room. But it does seem that this visit may be connected to possible discrepancies between Rove's and Cooper's account of their conversation.
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The Newsweek piece, though, does unveil Rove's latest defense--and perhaps that of the White House. According to Luskin, Rove also did not initially tell Bush about his conversation with Cooper. In the fall of 2003, Rove only assured Bush that he was not part of a "scheme" to discredit Wilson by blowing the cover of his wife. So even though Rove did share classified information with at least two reporters (he also told Novak that Valerie Wilson worked at the CIA), he now claims this was not done with any intent to undermine Wilson, a prominent critic of Bush's policy in Iraq.
But when it comes to various laws under which Rove's actions might be prosecutable, intent is not the issue. Moreover, note that in this telling Rove failed at first to tell his boss that he had discussed Wilson's wife with reporters. Bush had said publicly that he wanted to find out what had happened and that aides who had leaked classified information would be punished. His White House also declared that neither Rove nor Libby had been involved in the Wilson leak (though now it's clear they both were). So did Rove disobey the commander in chief by keeping the details from Bush and by only giving Bush a general assurance that he had not plotted against Wilson?
Who knows if the latest Luskin-Rove account is true? Luskin has peddled misleading information for Rove previously. But Rove's aim appears to be to keep Bush out of the loop--even if that means Rove has to depict himself as a subordinate who did not fully come clean with the president. An account in which Rove does not share the full truth with his boss is better for the White House than one that implicates the president with knowledge. If Bush knew about Rove's conversations with Cooper and Novak, then he would also have known that his White House's assertion that Rove had been uninvolved in the leak was false. With this latest account, is Luskin building a firewall, rather than a stonewall?
Meanwhile, the Times reported on Friday that Fitzgerald might be using espionage-related laws to bring indictments in the CIA leak case. Regular readers of this column might recall that I noted this possibility two months ago. I pointed out then that the indictments in the AIPAC case were "bad news for the Bush White House and Karl Rove" because they show that "Rove and any other White House aide involved in the Plame/CIA leak might be vulnerable to prosecution under the Espionage Act." For more on this legal twist, click here. In the meantime, keep your eye on the missing notebook and email. They don't have the dramatic punch of that eighteen-and-a-half-minute gap on a Watergate tape. But they may have some legal resonance in a case that does seem, finally, to be giving the White House the jitters.
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.
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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.
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.
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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.
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."
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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?