The Nation

In a series of extraordinary speeches, Senator Robert Byrd, a longtime historian of the Senate, has persistently sounded the alarm about imperial executive power. He has unflinchingly exposed the grave danger we face from an Administration that routinely abuses power and tramples democracy without batting an eye.

Yesterday, Byrd delivered another wakeup call. Taking aim at the Republicans' threat to use the "nuclear option"--a change to the rules of the Senate that would effectively bar Democrats from filibustering judicial nominations--he assailed those who would aim "an arrow straight at the heart of the Senate's long tradition of unlimited debate."  He didn't stop there. "Many times in our history," Byrd said--perhaps speaking to the hypocrites in power who prefer to lecture the world about democracy rather than protect it at home-- "we have taken up arms to protect a minority against the tyrannical majority in other lands. We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not men."

Read Byrd's warning to the republic:

Stopping a Strike at the Heart of the Senate by Senator Robert Byrd, delivered on March 1, 2005

In 1939, one of the most famous American movies of all time, "Mr. Smith Goes to Washington," hit the box office.  Initially received with a combination of lavish praise and angry blasts, the film went on to win numerous awards, and to inspire millions around the globe.  The director, the legendary Frank Capra, in his autobiography "Frank Capra: The Name Above the Title," cites this moving review of the film, appearing in "The Hollywood Reporter," November 4, 1942:    

Frank Capra's "Mr. Smith Goes to Washington," chosen by French Theaters as the final English language film to be shown before the recent Nazi-ordered countrywide ban on American and British films went into effect, was roundly cheered...

Storms of spontaneous applause broke out at the sequence when, under the Abraham Lincoln monument in the Capital, the word, "Liberty," appeared on the screen and the Stars and Stripes began fluttering over the head of the great Emancipator in the cause of liberty.

Similarly cheers and acclamation punctuated the famous speech of the young senator on man's rights and dignity.  'It was...as though the joys, suffering, love and hatred, the hopes and wishes of an entire people who value freedom above everything, found expression for the last time...

For those who may not have seen it, "Mr. Smith" is the fictional story of one young Senator's crusade against forces of corruption, and his lengthy filibuster for the values he holds dear.  

My, how times have changed. These days Smith would be called "an obstructionist." Rumor has it that there is a plot afoot in the Senate to curtail the right of extended debate in this hallowed chamber, not in accordance with its rules, mind you, but by fiat from the Chair.

The so-called "nuclear option" purports to be directed solely at the Senate's advice and consent prerogatives regarding federal judges.  But, the claim that no right exists to filibuster judges aims an arrow straight at the heart of the Senate's long tradition of unlimited debate.

The Framers of the Constitution envisioned the Senate as a kind of executive council; a small body of legislators, featuring longer terms, designed to insulate members from the passions of the day.  

The Senate was to serve as a "check" on the Executive Branch, particularly in the areas of appointments and treaties, where, under the Constitution, the Senate passes judgement absent the House of Representatives.  James Madison wanted to grant the Senate the power to select judicial appointees with the Executive relegated to the sidelines. But a compromise brought the present arrangement; appointees selected by the Executive, with the advice and consent of the Senate.  Note that nowhere in the Constitution is a vote on appointments mandated.    

When it comes to the Senate, numbers can deceive. The Senate was never intended to be a majoritarian body. That was the role of the House of Representatives, with its membership based on the populations of states. The Great Compromise of July 16, 1787, satisfied the need for smaller states to have equal status in one House of Congress: the Senate.  

The Senate, with its two members per state, regardless of population is, then, the forum of the states.  Indeed, in the last Congress, 52 members, a majority, representing the 26 smallest states accounted for just 17.06 percent of the US population.   In other words, a majority in the Senate does not necessarily represent a majority of the population.  The Senate is intended for deliberation not point scoring. It is a place designed from its inception, as expressive of minority views.  Even 60 Senators, the number required for cloture, would represent just 24 percent of the population, if they happened to all hail from the 30 smallest states. Unfettered debate, the right to be heard at length, is the means by which we perpetuate the equality of the states.  

In fact, it was 1917, before any curtailing of debate was attempted, which means that from 1806 to 1917, some 111 years, the Senate rejected any limits to debate.   Democracy flourished along with the filibuster.  The first actual cloture rule in 1917, was enacted in response to a filibuster by those who opposed U.S. intervention in World War I.

But, even after its enactment, the Senate was slow to embrace cloture, understanding the pitfalls of muzzling debate.  In 1949, the 1917 cloture rule was modified to make cloture more difficult to invoke, not less, mandating that the number needed to stop debate would be not two-thirds of those present and voting, but two-thirds of all Senators.

Indeed, from 1919 to 1962, the Senate voted on cloture petitions only 27 times and invoked cloture just four times over those 43 years.

On January 4, 1957, Senator William Ezra Jenner of Indiana spoke in opposition to invoking cloture by majority vote.  He stated with conviction:

We may have a duty to legislate, but we also have a duty to inform and deliberate.  In the past quarter century we have seen a phenomenal growth in the power of the executive branch.  If this continues at such a fast pace, our system of checks and balances will be destroyed.  One of the main bulwarks against this growing power is free debate in the Senate...So long as there is free debate, men of courage and understanding will rise to defend against potential dictators...The Senate today is one place where, no matter what else may exist, there is still a chance to be heard, an opportunity to speak, the duty to examine, and the obligation to protect.  It is one of the few refuges of democracy.  Minorities have an illustrious past, full of suffering, torture, smear, and even death. Jesus Christ was killed by a majority; Columbus was smeared; and Christians have been tortured.  Had the United States Senate existed during those trying times, I am sure these people would have found an advocate. Nowhere else can any political, social, or religious group, finding itself under sustained attack, receive a better refuge.  

Senator Jenner was right. The Senate was deliberately conceived to be what he called a "better refuge," meaning one styled as guardian of the rights of the minority.

The Senate is the "watchdog" because majorities can be wrong, and filibusters can highlight injustices. History is full of examples.

In March 1911, Senator Robert Owen of Oklahoma filibustered the New Mexico statehood bill, arguing that Arizona should also be allowed to become a state. President Taft opposed the inclusion of Arizona's statehood in the bill because Arizona's state constitution allowed the recall of judges. Arizona attained statehood a year later, at least in part because Senator Owen and the minority took time to make their point the year before.

In 1914, a Republican minority led a 10-day filibuster of a bill that would have appropriated more than $50,000,000 for rivers and harbors.  On an issue near and dear to the hearts of our current majority, Republican opponents spoke until members of the Commerce Committee agreed to cut the appropriations by more than half.

Perhaps more directly relevant to our discussion of the "nuclear option" are the seven days in 1937, from July 6 to 13 of that year, when the Senate blocked Franklin Roosevelt's Supreme Court-packing plan.  

Earlier that year, in February 1937, FDR sent the Congress a bill drastically reorganizing the judiciary.  The Senate Judiciary Committee rejected the bill, calling it " an invasion of judicial power such as has never before been attempted in this country" and finding it "essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the Government."   The committee recommended the rejection of the court-packing bill, calling it "a needless, futile, and utterly dangerous abandonment of constitutional principle....without precedent and without justification."

What followed was an extended debate on the Senate Floor lasting for seven days until the Majority Leader, Joseph T. Robinson of Arkansas, a supporter of the plan, suffered a heart attack and died on July 14.  Eight days later, by a vote of 70 to 20, the Senate sent the judicial reform bill back to committee, where FDR's controversial, court-packing language was finally stripped.  A determined, vocal group of Senators properly prevented a powerful President from corrupting our nation's judiciary.                                                               

Free and open debate on the Senate floor ensures citizens a say in their government.  The American people are heard, through their Senator, before their money is spent, before their civil liberties are curtailed, or before a judicial nominee is confirmed for a lifetime appointment.  We are the guardians, the stewards, the protectors of our people. Our voices are their voices.

If we restrain debate on judges today, what will be next: the rights of the elderly to receive social security; the rights of the handicapped to be treated fairly; the rights of the poor to obtain a decent education? Will all debate soon fall before majority rule?

Will the majority someday trample on the rights of lumber companies to harvest timber, or the rights of mining companies to mine silver, coal, or iron ore?  What about the rights of energy companies to drill for new sources of oil and gas?   How will the insurance, banking, and securities industries fare when a majority can move against their interests and prevail by a simple majority vote?  What about farmers who can be forced to lose their subsidies, or Western Senators who will no longer be able to stop a majority determined to wrest control of ranchers' precious water or grazing rights?  With no right of debate, what will forestall plain muscle and mob rule?

Many times in our history we have taken up arms to protect a minority against the tyrannical majority in other lands.  We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men.

But witness how men with motives and a majority can manipulate law to cruel and unjust ends. Historian Alan Bullock writes that Hitler's dictatorship rested on the constitutional foundation of a single law, the Enabling Law.  Hitler needed a two-thirds vote to pass that law, and he cajoled his opposition in the Reichstag to support it.  Bullock writes that "Hitler was prepared to promise anything to get his bill through, with the appearances of legality preserved intact."  And he succeeded.

Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the State: the correct order of events was first to secure access to that power and then begin his revolution.  Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side.  Instead, he turned the law inside out and made illegality legal.

And that is what the nuclear option seeks to do to Rule XXII of the Standing Rules of the Senate.  

It seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule.  Employing the "nuclear option", engaging a pernicious, procedural maneuver to serve immediate partisan goals, risks violating our nation's core democratic values and poisoning the Senate's deliberative process.

For the temporary gain of a hand-full of "out of the mainstream" judges, some in the Senate are ready to callously incinerate each Senator's right of extended debate.  Note that I said each Senator.   For the damage will devastate not just the minority party.  It will cripple the ability of each member to do what each was sent here to do - - represent the people of his or her state.  Without the filibuster or the threat of extended debate, there exists no leverage with which to bargain for the offering of an amendment.  All force to effect compromise between the two political parties is lost.  Demands for hearings can languish.  The President can simply rule, almost by Executive Order if his party controls both houses of Congress, and Majority Rule reins supreme.   In such a world, the Minority is crushed; the power of dissenting views diminished; and freedom of speech attenuated.  The uniquely American concept of the independent individual, asserting his or her own views, proclaiming personal dignity through the courage of free speech will, forever, have been blighted.  And the American spirit, that stubborn, feisty, contrarian, and glorious urge to loudly disagree, and proclaim, despite all opposition, what is honest and true, will be sorely manacled.

Yes, we believe in Majority rule, but we thrive because the minority can challenge, agitate, and question.  We must never become a nation cowed by fear, sheeplike in our submission to the power of any majority demanding absolute control.

Generations of men and women have lived, fought and died for the right to map their own destiny, think their own thoughts, and speak their minds.  If we start, here, in this Senate, to chip away at that essential mark of freedom - - here of all places, in a body designed to guarantee the power of even a single individual through the device of extended debate - - we are on the road to refuting the Preamble to our own Constitution and the very principles upon which it rests.  

In the eloquent, homespun words of that illustrious, obstructionist, Senator Smith, "Liberty is too precious to get buried in books.  Men ought to hold it up in front of them every day of their lives, and say, 'I am free--to think--to speak. My ancestors couldn't. I can.  My children will."

In mid-February, The New York Times ran a news story headlined "Intelligence Nominee Comes Under Renewed Scrutiny on Human Rights." That was, alas, not quite true.

John Negroponte, who George W. Bush selected to be the first national directory of intelligence, does have a checkered past that warrants examination. As I and others noted when Bush appointed him UN ambassador in 2001 and then ambassador to Iraq last year, during the time Negroponte was Ronald Reagan's ambassador to Honduras in the early 1980s, he was the boss of the contra operation. Worse, he ignored serious human rights violations and oversaw an embassy that smothered reporting of abuses committed by the Honduran military, an ally of the Reagan administration in the not-that-secret covert war against the Sandinistas in Nicaragua. (Click here for details.)

The Times article (of February 19) noted that human rights advocates were now complaining about the Negroponte appointment and accusing him of having covered up human rights abuses. The piece reported that Jack Binns, who had preceded Negroponte as ambassador in Honduras, opposed the nomination because he believed that Negroponte had misled Congress about human rights violations in Honduras and that Negroponte might tailor intelligence to fit the administration's policies. But this "scrutiny" has not extended much beyond the human rights lobby. Hill Democrats have not made a fuss about Negroponte's appointment. Senator Christopher Dodd, a Connecticut Democrat who in the 1980s was the leading foe of Reagan's actions in Central America, has declared Negroponte a fine fellow and fit for the job. Congressional Democrats have demanded an investigation of Gannongate, but none have pushed for the declassification of a 1997 CIA inspector general's report that concluded Negroponte's embassy had censored reporting on human rights abuses. (About 70 percent of the report is redacted.) And there's been little discussion of Negroponte's suitability for the post on the shouting-head television shows.

In its coverage of the appointment, the Times stuck with the old journalistic convention of he said/she said reporting, noting that some human rights fuddy-duddies were accusing Negroponte of having covered up human rights violations and that Negroponte's supporters were maintaining he's a great guy. That is, the Times was doing nothing to determine if the human rights critics were justified in their opposition to Negroponte. Yet the Times has on its staff one of the experts on Negroponte's tenure in Honduras: a reporter who cowrote a convincing series published by the Baltimore Sun in 1995 that concluded Negroponte's embassy had smothered reporting on human rights abuses. Ginger Thompson and Gary Cohn wrote the pieces, and today Thompson is a correspondent for The New York Times in Mexico City. (Click here for the Sun series.) Has the Times put her on the Negroponte beat? I don't know. But it would be a pity if the newspaper of record did not make use of this resource.

In the meantime, Democrats--and anyone who claims to care about human rights anywhere--ought to see a new documentary called The Ambassador, which was made by Norwegian filmmaker Erling Borgen. In a delightful coincidence, Borgen had decided to make a film about the U.S. ambassador to Iraq that explored his past in Honduras. The film is in Norwegian, but Borgen's small production company sent me one of the first copies of the English version.

The documentary does not disclose new revelations about Negroponte's days as our man in Honduras. But it is powerful indictment, for it presents human rights victims directly speaking about and to Negroponte, who supported a military and a government that killed and disappeared hundreds if not thousands of civilians. Honduran human rights leaders note that the fates of 179 Hondurans who disappeared during the Negroponte years have yet to be determined. In the film, Bertha Oliva, one of those human rights advocates (whose husband was disappeared), says, "I want to use every possible medium to make Negroponte tell hundreds of families of the dead and disappeared in Honduras where they are. He must stop hiding the truth." Noemi Espinoza, who runs a Christian aid organization in Honduras and who worked with refugees in the 1980s, says that Negroponte's embassy falsely accused her of being a subversive. After the Honduran military raided her office in 1982 and detained and tortured two coworkers, she fled to the United States.

The documentary--more than once--shows Negroponte testifying before the Senate in 2001 and saying there was "no substantiation of any systemic human rights violations" in Honduras. The statement seems either a lie or a fantasy, as various Honduran human rights advocates describe the extensive pattern of human rights abuses practiced by the Honduran military when Negroponte was ambassador. At the time, he was working closely with the Honduran military and the United States was training and supporting the now-infamous Battalion 316, which the CIA's IG report linked to death squad activity. In the documentary, former Ambassador Jack Binns recalls that after the Reaganites moved into the State Department in 1981 he was ordered to tone down his reports on human rights abuses--which included cases of disappearances, torture, and extrajudicial assassination--and was fired when he did not. Negroponte replaced him. Negroponte's focus was managing the war against the Sandinistas, and Honduras was providing key bases for the contras. It would have hardly helped the cause to issue critical reports on human rights atrocities committed by the Honduran military. The documentary quotes an unidentified embassy staffmember "close to Negroponte" who says that the embassy's reports were written "as if they were describing the human rights situation in Norway."

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Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on Gannongate, a Republican congressman who wants to nuke Syria, and Hunter Thompson.

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The film highlights Zenaida Velasquez, whose brother disappeared in 1981. She has been searching for him ever since. "It's like having a wound that is bleeding," she says. She describes a meeting she and other relatives of the disappeared had with Negroponte: "Negroponte was not making eye contact with us....And of course, denying everything. I just wanted to shout at him, 'Liar!'...He totally denied having any information on human rights violations. But he promised he would investigate and let us know later. Of course, we never heard back from him."

Leo Valladares, the former head of the Honduran Human Rights Commission, tells the filmmakers, "It was a dark era when anyone who was considered suspicious lost all of their rights. They lost the right to an independent court of law. They were abused and tortured. Many were killed." Dr. Juan Almendares, who was the principal of the University of Honduras at the time and a leading critic of US involvement in Central America, claims that Negroponte leaned on the Supreme Court of Honduras to annul his reelection as head of the university and that the court obliged. Gilda Rivera, a student in the early 1980s who protested against the United States, says she was rounded up with five other students and tortured for eight days at a secret torture center. Looking straight into the camera, she says, "Mr. John Dimitri Negroponte, as a victim of human rights violations in Honduras, I ask you, if you have any respect for mankind, to tell what you know, so justice can be served in Honduras. So the victims can finally get peace." Almendares, who now treats past torture victims by bringing them back to the military bases where they were tortured (and which were built with US funds), says, "My message to you, John Dimitri Negroponte, is that you must renounce your position in Iraq and that you confess internationally to all your involvement in war crimes." I can only imagine what Almendares might say about Negroponte's promotion.

The film does not provide new evidence that Negroponte killed human rights reports. But such evidence can already be found in that CIA IG report (even though it has been heavily censored) and in the Baltimore Sun series. The film, though, does make a compelling case that there is no way that Negroponte could have been unaware of the rampant and systemic human rights violations committed by his partners in the contra war. Yet for two decades he has denied he knew anything. This man, then, is either out of touch or not being honest. In either case, his appointment should be thoroughly scrutinized. If Bush wants America to lead a global campaign for freedom and democracy, he should not be entrusting a top post to a fellow who has credibly been accused of ignoring, if not condoning, war crimes.

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IT REMAINS RELEVANT, ALAS. SO DON'T FORGET ABOUT DAVID CORN'S BOOK, The Lies of George W. Bush: Mastering the Politics of Deception (Crown Publishers). A NEW YORK TIMES BESTSELLER! An UPDATED and EXPANDED EDITION is AVAILABLE in PAPERBACK. The Washington Post says, "This is a fierce polemic, but it is based on an immense amount of research.... [I]t does present a serious case for the president's partisans to answer.... Readers can hardly avoid drawing...troubling conclusions from Corn's painstaking indictment." The Los Angeles Times says, "David Corn's The Lies of George W. Bush is as hard-hitting an attack as has been leveled against the current president. He compares what Bush said with the known facts of a given situation and ends up making a persuasive case." The Library Journal says, "Corn chronicles to devastating effect the lies, falsehoods, and misrepresentations.... Corn has painstakingly unearthed a bill of particulars against the president that is as damaging as it is thorough." And GEORGE W. BUSH SAYS, "I'd like to tell you I've read [ The Lies of George W. Bush], but that'd be a lie."

For more information and a sample, go to www.davidcorn.com. And see his WEBLOG there

What is the issue on which Congressional Democrats are least likely to take a bold--and appropriate--stand?

War and peace? No. More than 126 House Democrats voted against the use-of-force resolution that President Bush used as an excuse for the invasion of Iraq, as did 21 Senate Democrats. Some 118 House Democrats and 11 of their Senate colleagues had the courage to vote against the continued funding of the war--not because they do not "support the troops" but because they want to get the troops home alive.

The Patriot Act? No. While US Sen. Russ Feingold, D-Wisconsin, was the only Senate Democrat who opposed the Patriot Act, 62 House Democrats opposed that assault on the Constitution and the majority of House Democrats have since backed resolutions to address the law's worst excesses.

Freedom of speech? Yes. When the House voted in mid-February on the so-called Broadcast Decency Enforcement Act, only 36 Democrats took the side of the First Amendment. They were joined by one Independent, Vermont Socialist Bernie Sanders, and one Republican, Texas renegade Ron Paul.

The vast majority of House Democratic Caucus members--they're the ones who are supposed to "get" the First Amendment at least a little bit better than their Republican colleagues--sided with House Majority Leader Tom DeLay, R-Texas, and his merry band of crusaders for censorship.

Don't let the bipartisan support for this measure cause you to think that this was an inconsequential measure. The draconian assault on the rights of artists and communicators to express controversial views was broadly opposed by unions representing the creative community. Under the provisions of the measure, an individual talk-show host, filmmaker, musician or on-air commentator could be fined as much as $500,000 for producing an image or expressing a point of view that is considered "indecent" by censors at the conservative-controlled Federal Communications Commission.

Additionally, broadcasters could be fined as much as $500,000 under the measure, a threat that assures that doors will be closed to controversial artists as a new era of self-censorship unfolds.

If the measure becomes law it will, in the words of US Rep. Jan Schakowsky, D-Illinois, "put Big Brother in charge of deciding what is art and what is free speech. We would see self-and actual-censorship rise to new and undesirable heights."

Schakowsky was one of the courageous 38 House members who voted "no." She was joined by many thinking progressives, including the sharpest observers of media issues in the chamber, US Rep. Maurice Hinchey, D-New York, US Rep. Diane Watson, D-California, and Sanders.

Noting that the fear of fines had already led 66 ABC-TV network affiliates to decide last year against showing the internationally-acclaimed World War II film "Saving Private Ryan," Sanders said, "Free Expression and First Amendment rights are the real target of this legislation. Ironically, we already have television stations refusing to air a film about the sacrifice of America's Greatest Generation to preserve freedom because of the danger of arbitrary fines that the FCC imposes under its overly vague so-called 'indecency standard.' Vastly increasing the fines to $500,000 will only escalate this dangerous cycle of self-censorship, particularly (by) small broadcasters who could be bankrupted by a $500,000 fine. This is not what America is about."

Unfortunately, most Democrats appear to believe that censorship is what America is all about. House Minority Leader Nancy Pelosi, D-California, voted for censorship, as did 161 other members of the opposition party that is supposed to take civil liberties more seriously than does the Republican majority.

In fairness, some prominent Democrats did choose the Constitution over political expediency. US Rep. John Conyers, the Michigan Democrat who is the ranking minority party member of the House Judiciary Committee, and US Rep. Henry Waxman, D-California, another House veteran with a long record of defending free speech rights, were among the proud if somewhat lonely foes of censorship.

Waxman echoed the concerns of thinking members of Congress when he said, "No one knows when one person's creative work will become another person's definition of a violation of indecency."

Sanders made an equally appropriate point when he explained that, "The specter of censorship is growing in America today and we have to stand firmly in opposition to it. What America is about is not necessarily liking what you have to say or agreeing with you, but recognizing your Constitutional right to say it. Today, it is Janet Jackson's wardrobe malfunction or Howard Stern's vulgarity. What will it be tomorrow?"

While the import of Sanders's question should be obvious, most Democrats answered that they simply did not care.

Talk about indecency!

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John Nichols's new book, Against the Beast: A Documentary History of American Opposition to Empire (Nation Books) was published January 30. Howard Zinn says, "At exactly the when we need it most, John Nichols gives us a special gift--a collection of writings, speeches, poems and songs from thoughout American history--that reminds us that our revulsion to war and empire has a long and noble tradition in this country." Frances Moore Lappe calls Against the Beast, "Brilliant! A perfect book for an empire in denial." Against the Beast can be found at independent bookstores nationwide and can be obtained online by tapping the above reference or at www.amazon.com

The emails keep pouring in with this plea: Investigate Gannongate! These messages are obviously part of a campaign among liberal Internet activists who believe the controversy concerning Jeff Gannon (aka James Guckert) has not received sufficient media attention. Gannon/Guckert was a conservative reporter for a marginal news outfit who obtained a daily pass to the White House press office and who also apparently was seeking customers as a gay, military-oriented prostitute. Serious questions do remain as to why and how the Bush White House's press operation granted access to Gannon/Guckert, a correspondent for the Talon News. Should a fellow with a fake identity--and a questionable background--be allowed into presidential press conferences? Talon News was connected to GOPUSA, an organization run by Texas-based Republican activist Bobby Eberle, and Gannon/Guckert routinely asked softball questions of Bush's press secretaries during their daily White House briefings. But throughout this scandal, I have wondered if the Gannon affair may be smaller than it seems. I expressed several concerns in an earlier column. Still, in response to the emails, I decided to heed the call and look further. What I found leads me to ask--gasp!--if Gannon/Guckert, on a few but not all fronts, has received a quasi-bum rap.

Let me stipulate that how Gannon/Guckert came to be permitted into the White House press room is a worthy topic of inquiry. But his pursuers ought to be careful on this point. Talon News was a fly-by-night (or phony) news operation with a political agenda. But White House daily briefings should be open to as diverse a group as possible. There is a need for professional accreditation; space is limited. Yet there is nothing inherently wrong with allowing journalists with identifiable biases to pose questions to the White House press secretary and even the president. And if such a reporter asks a dumb question--as did Gannon/Guckert (which triggered this scandal)--the best response is scorn and further debate. Bloggers should think hard when they complain about standards for passes for White House press briefings. Last year, political bloggers--many of whom have their own biases and sometimes function as activists--sought credentials to the Democratic and Republican conventions. That was a good thing. Why shouldn't Josh Marshall, Glenn Reynolds, John Aravosis, or Markos Moulitsas (DailyKos) be allowed to question Scott McClellan or George W. Bush? Do we want only the MSMers to have this privilege?

If Gannon/Guckert did receive preferential treatment--because of his ideological bent or any other reason--that would be wrong and a matter for the White House to explain. But let's move on to his personal (or other professional) life. Bloggers have made much of his apparent effort to earn a buck as a prostitute for men. This is not gay-baiting, they say, it's hypocrisy. The question is, hypocrisy on whose part? On Gannon/Guckert's? He's been accused of being a gay-baiter. But how true is that? As part of my investigation, I had my assistant, Alexa Steinberg, search through a collection of Gannon/Guckert's articles for pieces on gay-related themes. She found eight pieces. Most were straightforward accounts of political tussles over gay marriage. Here's a representative sample, from a July 7, 2004, article:

Senate Minority Leader Tom Daschle (D-SD) faces a difficult vote in the Senate when Republicans bring the Federal Marriage Amendment to the floor in the next two weeks. Sponsors of the bill say the constitutional amendment to preserve traditional marriage as the union of one man and one woman is necessary to counter activist judges who have allowed homosexual unions in Massachusetts.

Passage of the FMA is uncertain in the Senate, since it will require 67 votes. Daschle will have to decide whether to allow a floor vote or prevent it with a filibuster. The choice is fraught with peril since the South Dakota senator realizes whatever he does will impact either his chances of reelection or his position as Minority Leader.

Daschle received a 100% rating from the nation's leading gay rights group, the Human Rights Campaign, in recognition of his efforts during the 2001-2002 Senate session. Despite his 1996 vote in favor of the Defense of Marriage Act, Daschle has championed causes supported by the homosexual lobby in his role as Democratic leader.

Cheryl Jacques, HRC president said, "The gay, lesbian, bisexual and transgender community and our allies will hold senators who vote for the FMA accountable withour votes in November."

Here's another (from February 5, 2004):

Four justices on the Massachusetts Supreme Judicial Court issued a majority advisory opinion Wednesday, saying a bill that would allow for civil unions but not marriage, makes for "unconstitutional, inferior, and discriminatory status for same-sex couples."

"The history of our nation has demonstrated that separate is seldom, if ever, equal," the justices said in the opinion.

With that, the battle lines sharpened in the culture war over homosexual rights and instantly made "gay marriage" an issue in the 2004 elections. The subject has been difficult for Democrats seeking the presidential nomination, recognizing that a majority of Americans oppose gay marriage. But at the same time, they realize that Democrats receive nearly all of the political support of gay rights activists.

None of Democrat candidates for president have unequivocally come out in favor of gay marriage, but all support civil unions. Even Rep. Dick Gephardt (D-MO) did not endorse gay marriage, despite the fact that his lesbian daughter Crissy was actively involved in his campaign for the nomination.

This is pretty tame stuff. Gannon/Guckert's critics have pointed to an article in which he observed that John Kerry might become "the first gay president." This was not a slam on Kerry or an insinuation about Kerry's private life. The piece began:

Inasmuch as Bill Clinton is considered by some members of the African-American community to be "the first black president" because of their perception of hispositions with regard to minority issues, Democratic Sen. John Kerry might someday be known as "the first gay president" were he to win the White House in November.

The Massachusetts liberal has enjoyed a 100% rating from the homosexual advocacy group, the Human Rights Campaign (HRC), since 1995 in recognition of his support for the pro-gay agenda.

Despite his stated opposition to gay marriage, Kerry and his running mate, Sen. John Edwards (D-NC), who also boasts a 100% rating from the HRC, can expect to receive a high percentage of the gay vote, estimated to be around 4 million. Kerry voted against the Defense of Marriage Act (DOMA) in 1996 and both candidates oppose the constitutional amendment to protect marriage sought by President Bush.

Gannon/Guckert clearly was writing for a conservative audience. But he was hardly a flame-thrower on gay issues. His observation about Kerry was clumsy but not homophobic. Sure, he worked for an organization that supported an administration and party opposed to gay rights, and he was a Bush-backer. But does that automatically qualify him for outing? Should a lesbian reporter who works at the Wall Street Journal or at any metropolitan daily that editorializes against gay marriage be outed? Reporters are not elected officials. They do not legislate the behavior of others. Once Gannon/Guckert became an issue, his past--or present--as a male hooker was newsworthy, at least in a descriptive sense. But as a line of attack against him, it may be too much. I recognize this distinction might be hard to draw. But he has been hounded for being a gay male hooker. Should we even care if a reporter is moonlighting on the side in this fashion? I don't--let Helen Thomas be a professional dominatrix in her free time--unless that reporter explicitly claims to be a person of family values or publicly decries homosexuality or prostitution. I have not seen evidence that Gannon/Guckert struck such a stance.

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Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on Bush's budget scam, Hunter Thompson, and John Negroponte.

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Should the White House have handed a daily press pass to a reporter who turned tricks on the side? Was it hypocritical of the Bush White House to have done so? Was it a security lapse to let a pseudonymous fellow and possible felon close to the president? Gannon/Guckert and Talon ought to have been vetted more closely regarding their journalistic credentials. But I will not gripe if the White House press office decides it is not its job to investigate the personal lives and websites of those who apply for access to the press room. Some of Gannon/Guckert's critics have suggested that he was allowed into the White House due to some sort of gay connection. One site has used the Gannon/Guckert affair to float unsubstantiated rumors about the sex life of Scott McClellan. This is fair game--but only for journalistic investigation, not for throw-it-and-see-if-it-sticks postings. If there is evidence that McClellan is a gay GOP hypocrite or that Gannon/Guckert had an advantage because he was literally in bed with a White House official, that's a news story. Otherwise, it's smear-by-blogging. Last year, I spent months talking to a professional dominatrix who claimed she had been hired several times by a prominent Republican who does the family-values shtick. I examined her allegations the best I could. But I could not substantiate her claim, which I found credible. I had nothing to publish, nothing specific to blog.

It's certainly embarrassing to the Bush White House that its press operation accepted a reporter who was an actual or wannabe prostitute. But this is not the same as paying columnists to shill for the administration, producing pro-administration propaganda packaged as news reports, mounting fake town meetings, or restricting the number of press conferences. And to date there is no compelling evidence that the White House recruited or deployed Gannon/Guckert as a plant. It really had little cause to do so. Both Ari Fleischer and Scott McClellan have demonstrated they can duck questions ably on their own.

On to another matter in this scandal of many folds. The Gannon/Guckert controversy has merged into the Wilson leak affair. Gannon/Guckert's critics note that in an interview he conducted with former Ambassador Joe Wilson, which was published on October 28, 2003, Gannon/Guckert referred to a classified intelligence memo that claimed Wilson had been sent to Niger (to investigate the allegation that Saddam Hussein was trying to buy uranium for a nuclear weapons program) at the suggestion of his wife. Gannon/Guckert was echoing a point made by Wilson's antagonists, who opposed the investigation into the leak that appeared in a Robert Novak column identifying Wilson's wife as an undercover CIA operative. Gannon/Guckert's pursuers ask who gave him this classified memo? Was the White House using a gay male hooker as an operative in its fierce campaign against Wilson? (CIA officials told reporters the information in the memo was wrong.)

Had Gannon/Guckert been used by the White House in such a fashion, it would give Gannongate a much more sinister cast. Gannon/Guckert has not said who provided him this memo--or even if he had it in hand. According to Gannon/Guckert, FBI agents working on the Wilson leak inquiry did question him about the memo, but he has not been subpoenaed by Patrick Fitzgerald, the Justice Department attorney in charge of the quasi-independent investigation. Gannon, though, has pointed to a Wall Street Journal article that appeared eleven days before the interview with Wilson was published. What is striking is that the language Gannon/Guckert used to describe the memo during his interview with Wilson is nearly identical to the Journal's description. Here's the question Gannon asked Wilson:

An internal government memo prepared by U.S. intelligence personnel details a meeting in early 2002 where your wife, a member of the agency for clandestine service working on Iraqi weapons issues, suggested that you could be sent to investigate the reports. Do you dispute that?

Here's what the Journal had earlier reported:

An internal government memo addresses some of the mysteries at the center of the White House leak investigation and could help investigators in the search for who disclosed the identity of a Central Intelligence Agency operative, according to two people familiar with the memo.

The memo, prepared by U.S. intelligence personnel, details a meeting in early 2002 where CIA officer Valerie Plame and other intelligence officials gathered to brainstorm about how to verify reports that Iraq had sought uranium yellowcake from Niger.

Note the similarities. To ask the question Gannon/Guckert posed to Wilson, he did not need to possess that memo. He only needed to have read the Journal. It's possible he was leaked the same document. But the simpler explanation appears to be he saw it in the Journal. After all, if the White House--or Republicans on Capitol Hill--wanted to leak anti-Wilson material, they had plenty of better options than a fellow who worked for a piddling news service.

Nevertheless, Gannon/Guckert's critics have called for Fitzgerald to chase after him. Most recently, Representatives Louise Slaughter and John Conyers, two liberal Democrats, have written Fitzgerald and asked him to subpoena the journal Gannon/Guckert kept while he worked at the White House for Talon. (Gannon/Guckert resigned from Talon after the scandal broke.) In their letter, the House members characterize Gannon/Guckert as "a person in the White House briefing room who had access to a memo revealing the [CIA's] operative's name." They note that "Mr. Guckert had access to classified information." This description is misleading. Valerie Wilson's name had been disclosed months earlier--not by this memo. And, as noted above, it is uncertain--perhaps unlikely--that Gannon/Guckert had access to this memo. Still, they have egged on Fitzgerald to subpoena Gannon/Guckert's notes.

This would be a terrible move. Fitzgerald is already trying to destroy the ability of reporters to obtain information from confidential sources. He has subpoenaed Matt Cooper of Time magazine and Judith Miller of The New York Times and requested they identify sources. An appeals court recently ordered the pair, who have so far resisted, to cooperate. The case is heading toward the Supreme Court--which is not expected to be kind to the journalists--and Cooper and Miller could end up in jail. Now Slaughter and Conyers want to compound the damage FItzgerald is doing to journalism by pushing him to subpoena a reporter's notes. Fitzgerald should not be encouraged--especially when the case is weak that Gannon/Guckert had any access to classified information.

The Slaughter/Conyers letter shows how far off the rails well-intentioned people can go when scandal is in the air. I would not discourage anyone from responsibly investigating the questions that linger in the Gannon/Guckert affair. Perhaps the story will lead to further--and more serious--revelations of White House wrongdoing. But with the blogosphere ready-made for piling on and for the fast and widespread transmission of inaccurate information, the Gannon/Guckert tale has been susceptible to distortion. I have no brief for Gannon/Guckert. I am a fan of blogging and celebrate the rise of web-based independent researchers who can pursue matters ignored or neglected by the old media. But the limited inquiry I conducted convinces me that in this brave new world of blogging it is easy for information to outpace accuracy. Those emails I have received are, in a way, right: we need investigation, but investigation that can keep up with dissemination.

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