Legal Fiction

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I’m still gathering my thoughts on Alito. It’s not so much a question of whether or not I'll support him being on the Court – I’m sure I won’t. It’s a question of what the proper response should be politically. And to be honest, I'm not anxious for the fight.

It’s not clear to me that judicial nomination battles are favorable terrain for liberals. It’s hard for secular urban professionals to keep sight of this, but the Right has done a pretty good job of demonizing the judiciary as a bunch of gay-loving atheists in the eyes of “heartland” America. And while I’m not exactly excited by Alito, I’m more concerned that an all-out attack would repeat Lee’s ill-fated “Pickett’s Charge” at Gettysburg.

If you’ll remember, Lee was pretty much wiping his hind parts with the Union Army, but pressed his advantage by marching into Pennsylvania. Once there, on day 3 of that fateful worthy-of-being-a-Homer-poem battle, Lee made a characteristic gamble, but an uncharacteristically dumb one. He ordered his men to charge a heavily fortified Union line over completely open ground - and right down the center. The Confederate line stretched for a mile a long and had to march over a thousand yards (with no cover) to reach the fortified Union lines. One of Lee’s generals – Longstreet – supposedly had tears in his eyes when he gave the orders to charge.

Predictably, it was a disaster – and the worst bloodbath in American history. Although the Confederacy staggered on its feet for another couple of years, the Civil War was won (or lost) that day. And the ghosts of Pickett’s Charge have haunted the Southern mind for many decades. That consummate voice of Southern pathos, William Faulkner, famously wrote in Intruder in the Dust:

For every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it's still not yet two oclock on that July afternoon in 1863, the brigades are in position behind the rail fence, the guns are laid and ready in the woods and the furled flags are already loosened to break out and Pickett himself with his long oiled ringlets and his hat in one hand probably and his sword in the other looking up the hill waiting for Longstreet to give the word and it's all in the balance, it hasn't happened yet, it hasn't even begun . . . yet it's going to begin, we all know that . . . .

It seems that both sides are gearing up for all-out war. As Faulkner said, “the brigades are in position.” But I’m not sure this is the battle we want. It’s just not favorable terrain. My “gut” is telling me that demagoguing Social Security, Schiavo, Plame, gas prices, the culture of corruption, and Bush’s national security failures would be much more favorable battles to fight.

We’re winning the war right now – General McClellan Bush is reeling. What he wants most is a new Pickett’s Charge. He wants liberals to charge him on this terrain. And I'm not sure doing so is a good idea.

Basically, it’s just not clear to me that the Court has 1/100th of the importance that everyone ascribes to it. Throughout history, it has generally followed public opinion (or at least, elite public opinion), and there’s little it can do against committed legislative majorities (for instance, Brown was virtually ignored until the Civil Rights Act ten years later that tied integration with federal funding). The legislature is where the real action is – and it’s better to focus the resources there.

So, the million-dollar question is whether an all-out war over Alito makes winning legislative seats more or less likely. Nothing else matters. And I predict it will make it less likely. Court fights are necessarily culture war fights, and polarization along culture war lines are usually better for conservatives.

The bottom line is that progressives are winning the war right now. Bush is in retreat and the GOP is extremely vulnerable in ‘06. An all-out culture war over Alito would take everything else out of the headlines and completely change the current dynamic. In the end, I’m just not sure it’s worth it. And I sure as hell don’t want to be watching the election returns in ‘06 thinking back, like Faulkner’s 14-year old boy, about the failed “Alito’s Charge” that changed the dynamic and cost progressives the war.

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So it's Alito. I know literally nothing about the man other than his politically unfortunate nickname. So I'll have to read up before writing anything on him or deciding what I think. For now, I'm just glad it wasn't Luttig.

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Here's a question that sums up my argument below: If you read the Espionage Act to cover Libby, why wouldn't that same reading cover Sy Hersh and/or his sources?

[Remember that the Espionage Act doesn't mention "classified information." It mentions "information relating to the national defense" that "could be used" to injure America or to foreign advantage.]

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Some are objecting to my reading of the Espionage Act, so let me spell out my argument a little more clearly. Again, I freely concede that it’s plausible to read the statute in a way that covers Libby. But, I don’t think that’s the most reasonable way to read it. The bottom line is that, to me, the Espionage Act contemplates handing over information to someone with an interest in harming America. To be more specific, I read it as contemplating disclosing information to a potentially hostile or adverse foreign entity (or agent), or to some potentially hostile non-state group (e.g., World War I-era Socialists, al Qaeda, etc.).

Everything seems to boil down to what I called “element #4" yesterday – “information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” Again, it’s possible to rope Libby in with this language, but I don’t think he should be – on a strictly textual basis.

First, another traditional interpretative canon that I neglected to mention yesterday is that criminal statutes are to be construed narrowly. And this makes sense in light of our other criminal protections such as a presumption of innocence, right to a jury, etc. The government shouldn’t be able to send you to jail based on a stretched reading of the statutory text.

Second, when you read other sections of this statute, you get a clear sense that the text contemplates handing information over to a hostile agent. In this sense, the words “injury” and “advantage of any foreign nation” do a lot of the work here. Here’s section (a):

Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation . . .

Sections (b) and (c) incorporate this “intent” requirement by reference. And if you read section (a), it’s filled with references to munitions and naval bases and fueling stations – the type of thing you would want protected from people trying to hurt or attack you.

Sections (d) and (e) (the ones potentially applicable to our heros in the Plame case) read:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . .

Does a leak to Judy Miller qualify as something that “could be used” for injury or the advantage of any foreign nation? It’s a tough call.

It basically comes down to how you read “could be used.” On the one hand, the “could be used” language is broader than the “is to be used” language in sections (a) through (c)). So that’s an argument against me. But I think the “could be used” language was put in for a different purpose. Let’s say, for instance, that China asks someone for a list of the addresses of the military’s top secret bio-labs. If that person were caught, he could say, “hey, I didn’t know this information would be used to hurt America.” The “could be used” language ropes this person even if he could escape the “is to be used” language of section (a). It doesn’t necessarily mean that the statute criminalizes disclosures to parties who evidence no intention to injure or to be potentially hostile to the U.S.

More importantly, you need to think through the consequences of reading the statute in the way that many are suggesting it should be read. If Libby’s leak to Miller constitutes an act that “could be used” for injury or foreign advantage, then you have essentially criminalized every leak of classified information to any and all media outlets. Thus, every New York Times article that wrote about a leaked CIA memo would be a felony – for both the leaker (under section (d)) and the publisher (under section (e)).

Remember too that the Espionage Act doesn’t criminalize disclosing “classified information.” That phrase doesn’t appear anywhere in the statute. It criminalizes disclosing “information relating to the national defense” – which is a potentially much broader prohibition. Under this reading, any general or military official talking to any reporter could potentially be violating the Espionage Act - as would the reporter who then writes about it. Thus, Sy Hersh’s articles would violate the Espionage Act. Bob Woodward’s books would violate it as well. Maybe even Richard Clarke's. After all, the information they disclosed related to the national defense and "could be used" to the injury of the United States.

I know that people hate Libby (and the administration more generally), but you have to think through the consequences (the ex ante consequences) of adopting this interpretation. Once you unmoor "could be used" from the context of prohibiting disclosures to foreign or hostile agents, the statute becomes extremely broad and would have a major chilling effect on reporting about national security issues. That’s why the most reasonable reading is that the Espionage Act covers disclosing something to foreign or hostile agents. That is the “statutory essence” of the Espionage Act. And that's why it uses words like "injury" and "foreign advantage" in the context of discussing "munitions" and "code books" and what have you.

There is, however, a law specifically written to cover Libby’s conduct – it’s called the IIPA. And if you want to criticize Fitzgerald for not bringing an indictment, I would focus on that one.

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I probably should have done this a long time ago, but tonight I read over the two statutes that potentially apply to the actors in the Plame leak: (1) the Intelligence Identities Protection Act (IIPA); and (2) the Espionage Act. It seemed as if a bloggy consensus was gathering that Rove and Libby could be charged under the latter. The idea was that because the IIPA is so narrow, Libby and Rove’s behavior would be more likely to fall within the reach of the easier-to-prove Espionage Act. While that may be true, I don’t think the Espionage Act applies to either. More precisely, I don't think the Espionage Act should be applied to either. After reading the text of both statutes, I think it should be the IIPA or nothing.

Let’s start with the Espionage Act. Before I get started, I want to concede that there is a plausible reading of the statute that would cover Libby. However, when reading statutes, plausible usually isn’t the goal you’re aiming for. You have to read the entire statute and construe the individual words in relation to – and in the context of – the whole thing. It's important to remember that there’s an element of common sense reasoning in statutory interpretation. The more you’re squeezing conduct into carefully parsed words (especially in criminal matters), the more suspect your interpretation becomes. With that said, let’s look at the Espionage Act itself.

The statute has multiple sections, but the two sections that would likely apply are sections (d) and (e). They’re essentially the same. The former applies to those who legally have access to classified information (e.g., Libby), the latter to those who don’t (e.g., Novak, Miller).

Mark Kleiman laid out the elements quite well, so I’ll borrow from him (remember that each and every element must be proven beyond a reasonable doubt). The elements are:

(1) possession [legally or illegally] of (2) information (3) relating to the national defense (4) which the person possessing it has reason to believe could be used to damage the United States or aid a foreign nation and (5) wilful communication of that information to (6) a person not entitled to receive it. [emphasis mine]

The obstacles to indictment and prosecution are elements #2 and #4. Let’s start with #2 – “information.” The problem is that the second element isn’t limited only to the vague word “information.” That’s just the only applicable word in a long list of words. Here is the complete text of that element:

document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense

The problem is that “information” is surrounded by a lot of specific words listing tangible items. As you law dawgs probably know, there’s a principle of statutory interpretation called ejusdem generis, which literally means “of the same kind.” The idea is that when you have a bunch of specific terms followed by a vague general term, the meaning or scope of the general term should be limited to the same types of things listed by the specific terms. For instance, let’s say that a statute prohibited “cars, motorcycles, trucks, motor-scooters, and other vehicles” from entering the park. Under this canon of interpretation, “vehicle” probably would not refer to an airplane flying overhead (although such a reading would be plausible - especially to those who really hated, say, Delta).

Same deal here. The specific words ("sketch," "photograph," etc.) likely limit the scope of the general term ("information") to more tangible items. Under this view, leaking the State Department memo would be a better fit for the Espionage Act than would leaking Plame’s identity.

But the real problem is element #4 – “reason to believe [the information] could be used to damage the United States or aid a foreign nation.” Again, I concede that it’s at least plausible to read the statute in a way that covers Libby, but that reading would not be the best one. When you read the entire statute, you get the clear sense that this statute was meant to criminalize the act of disclosing information to people potentially hostile to America or to those who wanted to harm or damage our national security. Remember that the act was passed in 1917 at the height of the Red Scare. To me, when you read all the sections of the Espionage Act together, the Plame leak doesn’t quite fit.

For instance, let’s say that instead of leaking to Judy Miller, Libby leaked her name to someone in the foreign country where she worked just for spite. That would bring it in within the range of conduct that I think the statute is trying to punish and deter. In this respect, Larry Franklin’s actions are a much better fit than Libby’s for the text of the Espionage Act. Stealing documents and handing them over to potentially hostile or adverse foreign agents seems to fall within the “statutory essence” of the Espionage Act. I’m not a big Judy Miller fan, but I doubt she wanted to damage the United States with this information.

If you buy this idea of “statutory essences,” (which is another way of saying that statutory language must be construed within the context of the entire statute), then Libby’s conduct seems to be a much better fit for the IIPA. Borrowing again from Mark Kleiman, here are the elements:

(1) authorized access to classified information, (2) learning the identity of a covert agent (3) intentional disclosure of information identifying the agent to (4) an individual not authorized to receive classified information (5) knowledge that the information identifies a covert agent and (6) knowledge that the United States is taking "affirmative measures" to conceal the agent’s role.

Reading the indictment, Libby comes pretty damn close to meeting all six. My guess is that it’s the “covert” that kept Fitzgerald from bringing an indictment under the IIPA.

More importantly, though, Libby’s outing of Plame is precisely the kind of conduct that the IIPA was intended to deter and punish. Libby’s conduct is thus within the “statutory essence” of the IIPA. And based on what I read today, it’s pretty amazing Fitzgerald didn’t ding him on it.

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Scooter, we hardly knew ye.

[UPDATE: Just read the indictment. Scooter is going to jail. Fitzgerald was extremely thorough about documenting Libby's multiple deceptions to the FBI and the grand jury. It's a pretty damning document.

It's also pretty clear now why Fitzgerald needed to hear from Cooper and Miller. Libby's strategy seemed to be to blame everything on the reporters. I don't know if he was banking on them not talking, but that's sort of the theme of his false testimony.

What's interesting is that there a lot of others potentially implicated in this who remain unnamed. I'll have more to say later.]

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So the White House finally threw in the towel on Miers. Good. She simply had no business being nominated in the first place and I suspect that people like Hugh Hewitt and John Cornyn are going to look increasingly silly as time goes on. But it is a shame it had to end so soon. While she was the nominee, Miers would have continued to be a gaping wound in the side of the White House – and one that Democrats spent exactly zero effort creating. But I would like to take some time today to give some praise to the conservatives whose efforts contributed to her withdrawal. After that, though, I want to give them a word of warning.

But first, let’s look at the political implications of all this.

In general, I think this will be a good move for the White House. I know that Rove and Bush generally subscribe to the never-back-down-once-you’ve-dug-in theory of politics, but I’ve never bought that theory. Sometimes, backing down is the best thing to do.

At the very least, it will change the current political dynamic. Because the dynamic couldn’t get much worse, any change will help. More importantly, by withdrawing Miers, the White House removed the wedge that was growing into a festering wound in the side of the GOP coalition. I was going to use this phrase before I saw it in Slate, but I get the sense that the fever may have broken at the White House. A good nominee that can please the Right and not enrage the Left (someone like McConnell), coupled with a non-indictment for Rove, and suddenly life looks a lot better.

Turning now to the victorious conservatives, I do have to give them some props. The great complaint (and a somewhat justified one) against the conservative coalition (including the legal conservative bow-tie brigade) is that they have allowed themselves to devolve into mindless hacks after 9/11. But on this issue, principle seemed to trump political loyalty. It doesn’t necessarily matter that I don’t share their principles. For me, it was refreshing to see such a loud-and-proud stand against a President and a White House that I believe have not made our nation better.

On another level, I think that blogs and the new media played an important role in blocking the nomination. There were a lot of similarities between the conservative revolt on Miers and the liberal blogosphere’s united front against Bush’s plan for Social Security privatization/infinite deficit creation. Just like Social Security, after some initial confusion, a united front developed against the Miers nomination – with only Hewitt and the hackiest of hacks missing. As Kevin Drum suggested the other day, blogs may not be able to create yet, but they’ve certainly shown their ability to block.

Ok, with that said, I also want to offer a warning to the triumphant conservatives who seem ready to run back into Bush’s arms. I hope this little episode taught you something about your President – because there is an important lesson to be learned. The lesson is that this administration makes bad decisions. And the reason that it makes bad decisions is because it makes uninformed decisions. And the reason it makes uninformed decisions is because it lacks any sort of decision-making process. As ex-Bush aide DiIulio warned long ago in Esquire:

"There is no precedent in any modern White House for what is going on in this one: a complete lack of a policy apparatus," DiIulio tells Esquire. "What you've got is everything--and I mean everything--being run by the political arm. It's the reign of the Mayberry Machiavellis.”

It’s not that the administration is bad because it’s too mean or too conservative or whatever. It’s bad because it is necessarily incapable of making sound decisions because the process by which it reaches decisions is completely corrupted. (Corrupted is actually too kind in that it assumes the existence of some past condition that was better.)

Now this is all fine and dandy when it comes to dumb nominations. You can always withdraw a nomination. But here’s what you need to understand – the same decision-making process that brought us Miers was precisely the same decision-making process that took us to war in Iraq. And it’s precisely the same decision-making process that planned the war in Iraq. And it’s precisely the same decision-making process that administered the post-war occupation. Take a moment and think about that now that Miers has opened your eyes to the reality of the man behind the curtain.

But it’s more than Iraq. The process that led to Miers is the same flawed decision-making process that responded to Katrina. It’s the same flawed decision-making process running our budget and taxing our children. It’s the same flawed decision-making process that gave us an incoherent, budget-busting train wreck of a Social Security reform proposal. And it’s the same flawed decision-making process that concluded that authorizing torture was ok. All respect to KJ Lopez, these are “big things,” and the administration has been very wrong on all of them.

In a word, they’re fuck-ups. And the reason they’re fuck-ups is because of the faulty process they employ in developing policy. Reagan and Bush I at least believed in the idea of policy and the adversarial, fact-finding process necessary to develop it. But not this president – he goes by gut instinct, which is just another way of saying he goes by nothing. Our nation does what Rove and Cheney and Rumsfeld decide to do. And that’s great if they’re right. But they’re not right – a lot. And it’s because they ignore others and dissuade the administration from engaging in the sort of information-producing process necessary for sound judgments.

It would all be amusing if so much weren’t at stake. As I’ve said before, the effects of bad policy can only be hidden for so long. But as time goes on, the effects have a way of bubbling to the service – first in the form of bruised corpses in photos from an obscure Iraqi prison, later as something else.

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I think I would like reading the Corner a lot better if it offered some sort of package where only Cornerites I personally selected would appear on my screen. I say that because I came across this gem from KJ Lopez today and it's probably going to take me a couple of days to gather the strength back up to visit their site:

You know what the relief is this morning? A return to the feeling that this president gets the big things right. There was a detour, but I’m confident we’re going to have good news shortly on SCOTUS, because this president tends to get the big things right. That’s the confidence so many of us have always had in him.

Ezra Klein beat me to the punch on this one, but this is a truly fascinating statement, psychologically speaking. Obviously, I, um, disagree with her assessment re: Bush and "big things." But how is this in any way Bush getting a big thing right? It's not like Bush woke this morning and - consistent with his innate, brilliant-approaching-genius ability to be right about "big things" - decided it would better to withdraw her. He was forced to withdraw her. If Bush had his way, she'd still be there.

Ezra says this sort of rationalization is more consistent with religious devotion than rational thought, and he may well be right. It's certainly odd. And in the spirit of Ignatius Reilly, I'm pretty sure it's caused my valve to close.

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Andrew Sullivan:

Face-saving is not an unusual thing in politics. But equally it is never a sign of real strength. A strong president takes responsibility for his own choices, even if he feels misunderstood or misled. Reagan's Iran-Contra confession was an example of someone strong enough to admit a failure. This president is not internally strong enough to do something similar.

Did I have a bad history teacher or something? What "confession" is he talking about?

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While the Plame investigation may be about to end, the Abramoff octopus is just beginning to spread its slimy tentacles across the capital:

Susan B. Ralston, 38, has worked as an assistant and side-by-side adviser to Karl Rove since 2001, helping manage his e-mail, meetings and phone calls from her perch near his office in the West Wing. That has made her an important witness in the C.I.A. leak investigation, as the special prosecutor has sought to determine whether Mr. Rove misled investigators about his contacts with reporters about Valerie Wilson, the undercover operative whose identity was made public in 2003.

Ms. Ralston is also entangled in another political scandal: the case of Jack Abramoff, the Republican lobbyist, who employed her in the same frontline capacity during a stretch of time that is now under criminal investigation.

Ralston used to be Abramoff’s sidekick and was conveniently placed with Rove after Bush took office. Oh, the stories she could tell. But of course, money launderer Grover Norquist assures us that it was completely merit-based and had nothing to do with ensuring access: “Karl was looking for the most competent person around and stole her.”

To me, this just provides further proof that the lines have completely blurred between K Street, the White House, and the House leadership. It’s essentially one unified network – or syndicate or cartel – that controls and monopolizes the money flow into Congress (or at least controls and monopolizes to an extent not previously experienced in American history). The problem, though, with creating such an interconnected network is that when one part of it is implicated in a crime, it’s very easy for that one “node” to pull down the entire network.

Something very similar is happening in the Plame controversy. The White House pretty clearly engaged in a coordinated effort to smear Wilson (one that likely included Rice and Tenet and Fleischer too). The problem, though, with any conspiracy is that it’s only as strong as its weakest link. Once the first link breaks, the whole thing collapses upon itself.

But this idea of networks and interconnectedness extends well beyond the world of criminal conspiracy. In fact, it may explain how globalization could make a collapse of the global economy more likely.

Years ago, I read (or to be exact, tried to read) Empire by Michael Hardt and Antonio Negri. If I remember correctly, the book was featured in the old (and dearly missed) “Arts and Ideas” section of the Saturday NYT. In America, the word “left” gets tossed around inappropriately a lot, but these guys are real lefties in the old-fashioned sense of the word – they want capitalism to die and the global capitalist economy to collapse with it.

Their book is filled with esoteric jibberish and words that probably came from a 17th-century thesaurus, so it’s an extremely hard read – and I never finished it. So I can’t promise to get their argument right – I can just tell you what I think they’re saying. First, they whine about the collapse of non-capitalist alternatives and the rise of globalization. But second, and here’s the key, they argue that the trends of globalization are making it easier to strike down the global capitalist economy dragon. And to make their point, they rely on the concepts of networks and interconnectedness (or for you Clinton fans out there, interdependence). The idea is that the global economy is becoming one big, connected entity. In this sense, they seem to be agreeing with Thomas Friedman that the world is flattening.

But here’s the catch. Because everything is so interconnected, the entire network itself is more susceptible to attack because destroying one important node can – Abramoff-style – bring the whole thing crashing down. It’s sort of like creating a black hole that would suck down everything around it, which is pretty much what Abramoff is at the present.

Most disgustingly, though most presciently perhaps, the authors heap a lot of praise on radical Islam, largely because they view it as most clearly rejecting modernity and as the most willing to act against it. They wrote all this before 9/11, but you can see where I’m going with this. And when you do, you should hopefully develop a greater sense of urgency about the magnitude of the threat posed by nuclear terror. Under this view, 9/11 was not merely an attack on the country or the West, but an attack upon an important node of the global economy. Thus, what’s most frightening about terrorism in the age of globalization is its ability to potentially bring the whole damn thing crashing down. And a well-placed nuclear bomb could do just that.

It’s amazing in retrospect that destroying the center of the financial universe did not trigger a more destructive chain reaction across the markets. Maybe that’s because we’re not as connected as we think we are – yet. But we’re getting there.

When you think of the world economy as a network, it’s easy to see how a terrorist attack – or the collapse of stability in the oil-rich Middle East – could really suck our entire world economy into chaos. A nuclear strike on New York, or a collapse of Saudi Arabia, or any number of scenarios could trigger a financial panic spreading at the speed of broadband. And as the world’s financial centers grow more connected, and capital grows more fluid, there’s a greater chance that the world could experience on a much larger scale what Argentina recently experienced.

That’s why I'm convinced that freeing ourselves from oil and controlling the nuclear black market are the two most important and pressing issues facing mankind today - and global warming is a close third. A nuclear attack on a financial center, a sudden loss of oil supply, or the flooding of the world's coastal cities (see, e.g., New Orleans for the trailer for that movie) could send the world economy into a panic. And like Katrina did, such a panic would reveal just how precarious our situation is – and how it’s rooted on assumptions of stability that can vanish in a heartbeat.

It’s a good thing we have an administration that is top of these things though - one that would never cry wolf on important matters like nuclear attacks - and one that is doing everything possible to ensure that we're free from oil. If only Gore were president - the man who seems to be about 10 years before his time on most major issues.

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It’s not been a good couple of months for the GOP. Katrina. Miers. Frist. DeLay. Fitzgerald. Iraq. 2,000 deaths. But one thing I’ve noticed lately – or not noticed, to be precise – is the Democrats. Especially on Miers, they seem to be content to hang out on the sidelines and remain silent for the time being. And lo and behold, their numbers are improving. Maybe not being seen is the best thing a party that’s not well-liked can do when the other side is imploding. That’s the advice Mickey Kaus gave to John Kerry in 2004:

Hmm. During Kerry's last week of public campaigning, his numbers sank. After a few days holed up in Ketchum, Idaho, with the Clarke anti-Bush allegations getting huge play, he's back up. ... Kerry's future campaign strategy seems clear: Stay on vacation until November! Let the media do his work for him. The less people see him the better he looks.

Seriously though, while it’s fun to make fun of national Democrats, laying low actually makes a lot of sense right now as a matter of strategery. First, it’s important to understand that all of the scandals and trainwrecks now facing the GOP are largely self-inflicted. More importantly, many of these controversies have struck at the heart of the fault lines holding the GOP coalition together. Miers is the most obvious example. But Katrina – and the response to it – have also generated internal tension. Iraq too is putting stress on the coalition. And these are only the most recent events – for a long time now, deficits, spending, and immigration have been slowly destabilizing the conservative coalition just as tectonic plates slowly destabilize the structures above them. (You might consider Miers the “quake”).

When you get down to it, the only real glue holding this coalition together is hatred for liberals. As Yglesias said yesterday: “A gut-level hostility to liberal elites is not a governing philosophy.” No, but it’s heck of a way to keep an otherwise incoherent political coalition together. “Conservative” means so many things today that it’s hard to find any essence to the concept anymore. Grover Norquist launders money for a party that enacts a prescription drug benefit. Evangelical Christians support a party whose leadership opposes an anti-torture bill. It’s hard to find coherence here.

“Conservative” seems only to have negative meaning – that is, it is defined by what it is not, rather than what it is. And what it is not is the despised liberal elite, or Howard Dean, or Ward Churchill, or John Kerry, or Bill Clinton, or Dick Durbin, or whoever the designated “Other” for the week happens to be.

By staying on the sidelines (at least for now), Democrats rob Republicans of the opportunity of creating an “Other” to rally against – which is really the key to their recent success. I don’t really buy the whole “party of ideas” line.

Without an “Other,” the controversies remain the subject of the debate rather than the relative despicableness of the people. That’s why I agree with the Harold Meyerson argument that the lack of a strong anti-war movement is one reason why support for the war has plummeted so quickly. If the Left tried to repeat Vietnam, the debate would center on the hated protestors (notice how quickly Right Blogistan seized upon Cindy Sheehan – she was perfect for “the part”). And as Meyerson explained, that's exactly what Nixon did:

[Nixon] didn't so much defend the war as attack its critics, making common cause with what he termed the "silent majority" against a mainstream movement with a large, raucous and sometimes senseless fringe. When Nixon won reelection in a landslide, it was clear that the strategy had worked -- and it has been fundamental Republican strategy ever since.

. . .

Which is why, however perverse this may sound, the absence of an antiwar movement is proving to be a huge political problem for the Bush administration, and why the Republicans are reduced to trying to turn Dick Durbin, who criticized our policies at Guantanamo Bay, into some enemy of the people. The administration has no one to demonize. With nobody blocking the troop trains, military recruitment is collapsing of its own accord. With nobody in the streets, the occupation is being judged on its own merits.

Unable to distract people from his own performance, Bush is tanking in the polls. And with congressional Democrats at least partly muting their opposition to an open-ended occupation, it's Bush's fellow Republicans -- most prominently, North Carolina's Walter Jones -- who are now calling our policy into question.

I agree. Without an Other to parade around as a distraction, the focus stays on the failed policies, or the horrible nomination, or the perjury. With an Other, the focus turns to Cindy Sheehan. In fact, for a while, I thought the Corner might rename itself to All Cindy, All the Time.

That’s not to say Democrats need to stay silent forever. There is a time where you strike (and strike hard), but that time is not now. That’s why I think Democrats need to hold off on their slogans and their themes until next year. It’s a good idea to go early, but this convergence of bad news almost never happens, so they should take advantage by shutting up and letting everything play out. Let the coalition knive itself to death – let the negative headlines exhaust themselves. Then – during some stretch in the spring when nothing is happening – charge out with a new agenda that gets on the front page. What you don’t want to do is get your great new agenda relegated to page A12 when the front page says “LIBBY INDICTED ON PERJURY, OBSTRUCTION, AND CONSPIRACY CHARGES.”

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I agree with Steve Clemons - if Cheney was Libby's source, then Bush has known all along and lied straight-faced to the American public. I'm waiting for this:

"I did not have leak conversations with that man, Mister Cheney."

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One of the most interesting – and commendable – aspects of the conservative opposition to Miers is that the arguments have generally been rooted in principles rather than results. Legal conservatives have said they want more than someone who will simply “vote right.” Instead, they want someone who believes in – and has engaged intellectually – their general interpretative theories and jurisprudence. It’s not about Roe, it’s about principles. George Will captured the point perfectly:

In their unseemly eagerness to assure Miers's conservative detractors that she will reach the "right" results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result.

This sounds nice and all, but I’m skeptical that it’s true. Despite Will’s persuasive argument, I think the opposition to Miers is – at heart – rooted in the fear that she will “vote wrong.” It’s not that I think people like Will are being dishonest when they make these arguments, it’s that I think they don’t acknowledge (consciously) the extent to which results are driving their preferences for the system of “reasoning” they have adopted. In other words, they like the principle because of the results that principle generally produces.

To take a step back, I suppose the fundamental question is why people prefer a certain “system” over another system, or no system at all. And I’m asking this in a philosophical sense – what is the justification for adopting one over the other? Personally, I think the only reason that people really – really – prefer a given system is because they like the consequences of that system. We are all – I think – consequentialists at heart (that is, we justify things by their consequences). And despite their objections, I think this is also true of legal conservatives.

For example, why have conservatives who have traditionally been skeptical of abstract systems now adopted this particular abstract system so enthusiastically? And why has pragmatism (the original motto of the Burke conservative) become a dirty word in legal conservative circles? It’s hard to say for sure, but I can’t help but notice how much the system of conservative jurisprudence lines up quite nicely with conservative political preferences.

This is not so much a knock on conservatives as it is a philosophical doubt that people can believe in any sort of belief system without justifying it (consciously or subconsciously) by the favorable results it produces. It’s a variation of the old Marxist argument that ideological systems tend to promote self-interest. And although conservative jurisprudence (especially originalism) is a coherent, well-articulated system, it’s very open to this Marxist line of attack.

To be grossly general, the conservative “system” tends to produce two results – increased deference on social issues and increased activism on economic/administrative issues. Strangely enough, both results are consistent with conservative political preferences. On social issues, conservatives feel that legislative majorities are being thwarted by activist judges. On economic issues, conservatives recognize that they lack majorities for curtailing the administrative and welfare state. The “system” seems to solve both problems, though in two different ways that are in tension with each other.

That’s not to say that progressive jurisprudence is free from this internal tension. In fact, it just flips the conservative system on its head – it defers in the economic/administrative sphere and becomes more activist on social issues. That said, I think the progressive “system” is more consistent with the text of the Constitution, but I’m not going to sit here and deny that it’s pretty convenient given my political preferences.

My bigger point is that these "flaws" are common to human thought. People tend to conceptualize a logical system as a neutral forum to evaluate the issue at hand. But the lines are more blurry than that. All systems are, to a greater or lesser extent, stacked with assumptions – usually politically favorable ones. And the system usually can’t be completely separated from the desired results.

That’s why I think picking a system usually comes second – the political preferences come first and the system that best ties them together is subsequently adopted. There’s a Darwinian aspect to it. Systems that achieve desired results (at least most of the time) are “selected” and passed on. Systems that do not achieve these results don’t survive. For instance, I doubt that conservatives would be such ardent originalists if Federalist #13 had been an long argument about why the due process clause protected gay marriage. (Bizarro James Dobson - "Why should we listen to what slaveowners thought?").

That said, there is one issue where I think conservatives could eventually prove my theory wrong – crime. In general, I think it’s fair to say that conservatives are less supportive of criminal rights. I don’t have any polls in front of me, but they seem to be more likely to favor the death penalty, mandatory minimums, military tribunals, long sentences for drugs, less funding for public defenders, a weaker habeas system, greater police search powers, and so on.

Fine – those are political preferences and people can have a good faith argument about them. But what’s interesting is that conservative jurisprudence seems to demand an extremely robust regime of criminal rights. This is true whether you approach these issues from an originalist or a textualist point of view. From an originalist point of view, it’s clear from the Bill of Rights that the Framers were extremely conscious of protecting the rights of criminals and the accused. Five of the first ten amendments involved criminal rights – and the Fifth and Sixth Amendments each pack a number of distinct protections into a single amendment. This doesn’t change if you, like me, care more about the text than the Framers’ understanding. If you focus on the text, it too seems to demand strong protections for criminal rights.

Yet, it is generally the conservative federal judges who read the 4th Amendment out of the Constitution, or never grant habeas (see, e.g., the 5th Circuit), or support military tribunals. On criminal issues, the “system” is thrown out altogether – which calls into question just how principled it was in the first place.

Tying this all back to Miers, I don’t doubt that conservatives are upset because she hasn’t been an advocate for their system. And in many ways, this is admirable. I admire them for standing up for their principles in the face of a President they’ve been hesitant to oppose. My point is simply that principles are not always as principled as they appear. And that’s not necessarily bad. If anything, it just shows that most of our legal debates are actually political debates – which is perhaps the theoretical foundation for Breyerian deference, which might be the next big thing in progressive constitutional thought.

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From Judy's Paper:

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.

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So I was riding the train back from Boston to DC earlier today and I was listening to two Amnesty International workers at the table beside me (I was doing work in the cafe car) talking (loudly) about torture and their latest efforts, etc. One of them was essentially saying that she had given up and become totally cynical that Americans would ever care. The other tried to reassure her and explain why action was necessary. So this particular part of the conversation goes on from Wilmington to Baltimore.

At Baltimore, Sy Hersh gets on the train and sits with them at their table in the cafe car (I couldn't tell if he knew one of them or not). Anyway, after a few pleasantries, they asked him about his views on this particular question and whether there was something or someone giving him hope. Hersh replied, "We're fucked."

I should be back to regular posting tomorrow.

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Sorry for the non-posting - I've been very busy this week and out of town for the weekend. It's possible I could post before Sunday, but unlikely. If not, have a good weekend.

I'll leave you with three great quotes. The first from John Podhoretz:

WOW, AND HERE I THOUGHT ALL CORPORATE LAWYERS HATED THEIR WORK... [JPod]
...and found it mind-deadening. But it appears that if you suggest their lawyering isn't everything that a Supreme Court nominee could require, you get your hat handed to you. So okay, guys, I give in. There's nothing that could possibly prepare anyone for the Supreme Court better than deep experience in filing a pre-trial motion and preparing a settlement letter.

And this, from Col. Wilkerson:

And of course there are other names in there: Undersecretary of Defense Douglas Feith, whom most of you probably know Tommy Franks said was the stupidest blankety, blank man in the world. He was. (Laughter.) Let me testify to that. He was. Seldom in my life have I met a dumber man.

And of course this discussing what our good friend Brownie was doing while New Orleans drowned:

On Aug. 31, Bahamonde e-mailed Brown to tell him that thousands of evacuees were gathering in the streets with no food or water and that "estimates are many will die within hours."

"Sir, I know that you know the situation is past critical," Bahamonde wrote. "The sooner we can get the medical patients out, the sooner we can get them out."

A short time later, Brown's press secretary, Sharon Worthy, wrote colleagues to complain that the FEMA director needed more time to eat dinner at a Baton Rouge restaurant that evening. "He needs much more that (sic) 20 or 30 minutes," Worthy wrote.

"Restaurants are getting busy," she said. "We now have traffic to encounter to go to and from a location of his choise (sic), followed by wait service from the restaurant staff, eating, etc. Thank you."

Sometimes I wish they still tarred and feathered people.

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I’m on the road for work today, so I may not be here when the indictments come down. Anyway, I wanted to comment briefly on this post I saw over at TPM Café:

I don't have access to Lexis/Nexis, but someone or ones with access should start compiling all the 1998 quotes from conservatives arguing that perjury is a high crime--and why.

While it would be amusing, the problem with this approach is that it lends itself too easily to a false equivalence. For instance, let’s say that Libby, Fleischer, and Rove all get indicted today for perjury. The initial impulse will be to wave around the impeachment-era quotes about how bad perjury is. The point being that Republicans are hypocrites. The problem, though, is that Republicans can play that game too. They will pull out quotes from Democrats from the same time period saying that perjury isn’t that bad. The point being that Democrats are hypocrites. And the great scales of morality will remain perfectly balanced with Republicans and Democrats equally guilty of all things.

I don’t want the dialogue to get mired in the Swamp of Moral Equivalence (where both sides are always equally right and wrong) that seems to be a permanent template that people like David Broder project on to the world. Though I realize what I’m about to say has a “heads I win, tails you lose” ring to it, I think it’s true. Under the hypothetical above, I think the Republicans get it wrong both times. And the reason is context. Perjury – like all things – must be viewed in context. I’m not saying that perjury is good – it’s never good. But the question is not whether it’s good (it’s not), it’s whether it is sufficiently bad to warrant impeachment or indictments of senior administration officials. And that depends entirely on context.

Clinton’s perjury involved a private sexual affair. That’s not to excuse it – it’s only to say that it doesn’t rise to the level of impeachment given the circumstances. If Clinton had committed perjury in the context of Travelgate or Somalia, that’s an entirely different matter. And I would have said impeach his ass. That’s because it would be perjury in the context of his public duties and responsibilities. Again, not good – just not sufficiently bad for impeachment.

Libby’s perjury (if it exists) was in the context of an official DOJ investigation into an outing of a CIA agent. There was nothing private about it. If Libby lied about an affair or private past drug use under oath, I don’t think that would warrant an indictment. It would be bad, but it wouldn’t justify prosecution. Lying to the FBI about this particular investigation, however, is completely different. This is an investigation into Libby’s public action as a public official with knowledge gained as a result of his public authority. There’s nothing private about it. Perjury in this context is indictable. The public action undermined national security no matter how sketchy or partisan Joe Wilson is.

When the indictments come, I expect you’re going to hear cries of hypocrisy ringing out from both sides. But at the risk of sounding hackish, I think the GOP will get it wrong twice. The perjury of Clinton was not an impeachable offense (though still a bad action), while the perjury of Libby is an indictable offense. The two are not equivalent and it’s perfectly reasonable to treat one as worse than the other.

But (at the risk of entering the Swamp) the Democrats need to be careful not to be hypocrites themselves as they go waving around 1998 perjury quotes. The point is not that Libby committed perjury - the point is that he did so in this context. The context is what makes the perjury bad, not vice-versa.

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Because I’m a Virginia transplant (I’ll always be a Kentuckian at heart – and basketball season starts soon), I’ve had a close-up view of the increasingly nasty Governor’s race in Virginia. I’ve known for some time that I would vote for Kaine – primarily for fiscal reasons. Kilgore, I thought, would re-wreck the state budget with the same mix of tax-cut-and-spend policies that paralyzed the state pre-Warner and is slowly paralyzing the national government. I was at the University of Virginia from 2001 to 2003 and saw first-hand the damage that results when your state government is broke. The University couldn’t hire anyone, couldn’t keep promising scholars, couldn’t provide proper services, and everything was generally a mess. Like Clinton, Warner and a minority of fiscally responsible Republicans took a courageous stand and fixed the budget. Kilgore opposed it, but now he is more than happy to promise away the fruits of others’ political courage.

But that said, I wasn’t very excited about Kaine either. Mine has always been an anti-Kilgore vote, which was a vote based entirely on who I thought would be best for the state budget. But as Kilgore started losing ground, he started going Atwater/Rove on Kaine – first demagoguing immigrants and then the death penalty. The shift to the culture war prompted my “Not Kilgore for Virginia Governor” byline. Now, though, you’ll see that I have “Kaine for Governor” up. And the reason I’ve shifted from anti-Kilgore to pro-Kaine has to do with the way Kaine responded to the death penalty demagoguing. It is a model for Democrats (or progressive Republicans) to follow – especially religious ones.

When I first heard of Kilgore’s eleventh-hour unveiling of death penalty demagoguery, I feared it might be the undoing of Kaine. I guess I’ve seen the culture wars work so well that I’ve become afraid of them. It’s strange – I only really started disliking Kilgore after his immigrant and death penalty-bashing. I could vote for a Republican, but not a culture war Republican – it’s the one thing that ensures my eternal contempt. But what’s maddening is that triggering my contempt is the whole point of the culture wars. Kilgore wants nothing more than to see people like me bash him on cultural issues because he knows that rural and exurban Virginians resent the Starbucks demographic.

Having resigned myself (with pumpkin spice latte and tuna roll in hand) to the fact that my demographic can’t be publicly embraced but must be publicly shunned, I was all ready to see Kaine flip and flop and squirm and apologize for being a Democrat. Basically, I was prepared to see him be ashamed for his views. But that’s not what I saw at all. Here’s the text of his TV ad:

"My faith teaches that life is sacred. That's why I personally oppose the death penalty. But I take my oath of office seriously, and I'll enforce the death penalty . . . because it's the law."

That line is a pretty gutsy thing to say in a state that overwhelmingly supports the death penalty. And that’s what was so refreshing about it. It was a mix of political savvy and political courage. Although he insisted he would enforce capital punishment, he didn’t shy away from his beliefs either. And even better, he explained that they were based on his faith and didn’t sound like John Kerry when he was saying it. It wasn’t much – and I’m certainly not that influential – but it won my admiration to see him sticking with his beliefs even though acknowledging them carried a political risk. You gotta dance with them what brung you, I say.

Stepping back, I think Kaine’s response provides some insight into the great Kos-DLC debate. I’m certainly not a Kos defender (though he’s better than Sirota), but I think the DLC and others aren’t grasping the heart of his argument. Kos, in my opinion, isn’t demanding necessarily that the party move left or that it support the liberal party line. What Kos and the “netroots” want is for Democrats to stop being ashamed of being Democrats. He wants them to have proud beliefs.

Take Lieberman and Montana Governor Brian Schweitzer. Lieberman is more liberal on a number of fronts than Schweitzer (especially cultural issues), but the reason Lieberman draws the wrath of the blogosphere is because he acts ashamed to be a Democrat. Schweitzer doesn’t.

That’s all I’m asking too. I would obviously prefer that all Democrats support gay marriage. But that’s not a realistic option in many places. But it doesn’t bother me if a candidate doesn’t 100% agree with me. It does bother me though when they squirm and act ashamed of being Democrats.

That’s why I am so unexcited by Harold Ford. I was very excited about him initially and had even toyed around with volunteering for his campaign. But after his gratuitous anti-Dean attack, I frankly don’t give a crap if he wins or not. That’s because I can already see that he’s going to be ashamed of his party affiliation and I’m tired of those people – especially after Iraq. I’d rather have a Democrat ten times more conservative than Ford and proud of the beliefs that make him a Democrat than Ford, who will spend his entire campaign distancing himself from the “tainted” brand. (Dean is certainly not above criticism - but there are more diplomatic ways to do it. The point is not so much the substance of the criticism, as it is the tone and choice-of-words that I think are a bad omen.)

What Ford doesn’t realize is those tactics ultimately backfire in the information age. A year ago, I would have called his move savvy, but I think times are a'changin' about the political wisdom of triangulation. Yes, given the structural demographics of our country, Democrats have to seize the middle to win. That's still true. But you don’t win in 2005 by attacking your base - and that's doubly true for Democrats who are growing increasingly dependent on small online donors for funding and publicity.

You have to be “selectively centrist,” like Hillary is doing to perfection. Hillary is reaching out to the middle, but not stepping on the base to do so. There were a dozen ways that Ford could have shown his centrist sensibilities without attacking Dean in that way. But attack Dean he did – and it assured him of collecting about zero from progressives outside of Tennessee and of generating exactly zero excitement as well.

UPDATE: In the middle of writing this post, I found this Washington Monthly article that was apparently channeling my thoughts. To be precise, I was googling for the text of the Kaine ad and found it. I saw the first paragraph, cursed, and then decided I should stop reading and write my post first. So I promise that I wrote my post before I read the article. But anyway, the author hits upon many of the same points. He also recognized that the key issue is sincerity:

Kaine is a Catholic who weaves his faith into nearly every speech, debate, and even some commercials. He's not without his critics, and it's not yet clear whether the decision will pay off for him. As of mid-September, he was neck and neck in the polls with Republican opponent Jerry Kilgore. But Kaine has already accomplished something few other Democrats can claim: No one questions his sincerity.

He's done it by talking about his Catholicism early and often, taking away the charge that it's a purely political gambit. Unlike many Democrats who try to sound like Bill Clinton but come off as Jerry Falwell crossed with an android, Kaine talks like himself. He not only doesn't apologize for his religious beliefs, he even wields them as a weapon. As a consequence, Kaine appears to have neutralized the faith issue, freeing himself to make his case to voters about how he would deal with the state's economy, education, and health care. Win or lose, Kaine is already showing Democrats how to navigate the faith issue. It's not enough to get religion; they also have to get real.

Yep.

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With Iraqi elections and Forgetful Judy taking the headlines, I doubt this excellent story by the Post on the Abramoff-Norquist-Reed-DeLay syndicate will get the attention it deserves. There are a lot of details, but it’s worth the read and I highly recommend it. The big value of the article is that it provides a detailed account of how the Abramoff syndicate worked in practice to influence national policy. It also shows what an absolute slimeball Ralph Reed is. More specifically, it shows how willing he is to value money over religion and to manipulate social conservatives and treat them like useful idiots.

It’s a long article, so let me try to sum up the basic story. An internet company called eLottery hired Abramoff to oppose a bill that would have made it easier to ban online gambling (a bill that had strong Christian Right support). The bill had passed the Senate and looked like it was headed for easy passage in the House. In fact, prospects looked so bright that the bill’s sponsor agreed to put it on the “suspension calendar,” a procedure that prevents amendments from being added to a bill (thus avoiding floor fights). A bill on the suspension calendar, however, requires a two-thirds majority for passage. Long story short, Abramoff’s efforts (more on them in a second) peeled away enough Republicans to prevent the anti-gambling bill from getting the necessary two-thirds support (even though the bill had a strong majority). [On an aside, DeLay voted against his party to oppose the bill – something he does 6% of the time and usually only on amendments. I’m sure the golf trip to Scotland with Abramoff that May had nothing to do with his vote.]

Because the anti-lottery bill was very popular with the Christian Right, people like our friend James Dobson immediately demanded another vote. Abramoff’s new strategy was therefore to keep the leadership from bringing the bill back up – and he was successful, despite the fact that the bill had strong evangelical support.

In short, Abramoff had two strategies – preventing the bill from getting 2/3 support and then preventing the leadership from bringing the bill back up. The article explains in sleazy detail all the money exchanges and backchannels that allowed this strategy to succeed. But for purposes of today, you should understand that Reed played a big role – receiving eLottery money that was initially paid to Abramoff and subsequently laundered through Norquist and another Christian group (led by a pedophile) before reaching Reed.

Other than showing that he is slime, Reed’s contribution shows two things about him: (1) money trumps religious principles for him; and (2) he thinks social conservatives are idiots – useful idiots, but idiots nonetheless.

On the money issue, you need to understand that gambling – while not the equivalent of abortion or gay marriage – is an issue near to the heart of social conservatives. In receiving Abramoff’s money and using it to attack Congresspeople who supported the bill, Reed was undermining the efforts and beliefs of evangelicals simply because he had been paid to do so. Christ is nice, but cash is apparently better. And the fact that Reed agreed to receive the money through so many invisible intermediaries provides strong evidence that Reed knew something was not quite right about this whole affair.

In a telephone interview, Vanderwall [the pedophile] said that in July 2000 he was called by Reed's firm, Century Strategies, alerting him that he would be receiving a package. When it came, it contained a check payable to Vanderwall's group for $150,000 from Americans for Tax Reform, signed by Norquist. [Norquist had taken a $10K cut.] Vanderwall said he followed the instructions from Reed's firm -- depositing the money and then writing a check to Reed's firm for an identical amount.

"I was operating as a shell," Vanderwall said, adding that he was never told how the money was spent. He said: "I regret having had anything to do with it."

Obviously, I don’t think that highly of James Dobson. But I’ve never heard of him abandoning his beliefs – and manipulating his flock – for money. In this sense, Dobson is a far more principled man than Reed, who is essentially an amoral political mercenary.

But the real outrage – and one that should cause social conservatives to tar and feather Reed – is the absolute contempt he had for well-meaning, sincere anti-gambling activists. He exploited and manipulated them to serve the interests of gambling interests – interests they thought they were opposing.

Even before the eLottery scandal, Reed had used social conservatives as patsies in the service of Abramoff’s Indian casino clients.

Abramoff had previously paid Reed's consulting firms to whip up Christian opposition to Indian casinos and a proposed Alabama state lottery that would compete with the gambling business of Abramoff's tribal clients, sometimes using Norquist's foundation as a pass-through, a Senate investigation has found.

Reed’s defense was that he had no idea – no idea a’tall – that the one million in fees he received from Abramoff were from competing casinos. Rrrright.

But even that lame defense is clearly not going to work for him this time. In this instance, Reed was taking steps to pressure individual Congress members to oppose an anti-gambling bill. Abramoff’s strategy – a classic up-is-down-ism worthy of Rove – was to seize upon a couple of narrow exceptions in the bill (for jai alai and horse racing) to argue that the bill would actually “expand legalized gambling.” Reed is slimy, but he’s no idiot. He knew exactly what he was doing.

Documents show that Abramoff's strategy was to dispatch Sheldon to pressure about 10 social conservatives in their home districts, accusing them of being soft on gambling for supporting Goodlatte's bill. Abramoff's group hoped those members would stir fears among House leaders that another vote on the gambling bill could threaten those members and thus the GOP's thin 13-seat majority.

On Aug. 18, Abramoff faxed a message to eLottery's Daum ordering more money for Reed's activities. "I have chatted with Ralph and we need to get the funding moving on the effort in the 10 congressional districts," Abramoff wrote. "Please get me a check as soon as possible for $150,000 made payable to American Marketing Inc. This is the company Ralph is using."

ELottery issued the requested check to American Marketing on Aug. 24 and delivered it to Abramoff at Preston Gates. Five days later, Abramoff e-mailed Reed. The subject, "Internet Gambling: And so it continues." The message asked, "Where are we? You got the check, no? Are things moving?"

Reed answered the next day: "1. Yes, they got it. 2. Yes, all systems go."

There is more than one level of absurdity here. First, you have Reed taking steps to protect gambling interests because he was paid to do so. Second, Reed’s strategy for protecting gambling was to attack opponents who supported an anti-gambling bill as being soft on gambling (thus exploiting sincere opposition to gambling by lying). That’s truly amazing – his entire strategy was to lie to anti-gambling activists and assume that they would be completely ignorant about the content of the bill. Third, he was willing to undermine elected (though vulnerable) social conservatives – his supposed comrades-in-arms – in order to protect gamblers. That’s truly amazing stuff.

The big losers here are the social conservatives who have once again been treated like fools. Reed was apparently convinced that these people were so stupid that they could be rallied under the banner of anti-gambling even though their efforts were being used to protect gambling interests.

The arrogance is stunning. Let’s hope that principled social conservatives see this slimeball for what he is and reject him. If not, then I fear that Georgia social conservatives really are as uninformed as Ralph Reed apparently thinks they are.

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I'm not exactly the "go-to" blogger for the Plame drama, so I just want to make sure I have all this straight - after all, it's hard to keep everything straight with everyone in the know coming down with a bad case of the forgetfuls.

First - Libby testifies under oath that he never mentioned Plame's name to anyone. He was even kind enough to remind Judy about that in the infamous "waiver" letter: "The public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me."

Second (and moving back in time now) - In late June, Libby meets with Miller to discuss Wilson's trip. Libby was insisting that Cheney didn't know about the trip and that he was pissed at the CIA.

Third - Libby meets with Miller again on July 8 (two days after the Wilson op-ed). Her notebook for that day included the words "Valerie Flame." But "Flame," Miller told the NYT reporters, "did not appear in the same portion of her notebook as the interview notes from Mr. Libby." Forgetful Judy, however, just couldn't remember whether she got that name from Libby or from other sources. She got the forgetfuls! Forgetful Judy also remembered she had discussed the Wilson/Plame connection with other sources but "could not recall any by name or when those conversations occurred. "

Fourth - On July 12 (two days before the Novak op-ed), Miller spoke with Libby again. This time, the interview notes clearly included the name "Victoria Wilson." Unfortunately, Forgetful Judy got a bad case of the forgetfuls again about how that rascally name got in there.

I told Mr. Fitzgerald that 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. I also told the grand jury I thought it was odd that I had written "Wilson" because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess.

To sum up, Libby was pissed about Wilson in late June. Wilson goes public on July 6. On July 8, Libby meets with Miller. Her notes from that day include the phrase "Wife works at Winpac." Forgetful Judy's interview notebook for July 8 also includes a reference to Plame's name, apparently in some other part of that day's notebook. Libby meets with Miller again on the 12th. Forgetful Judy's interview notes with Libby on July 12 include a reference to Plame's name. However, Forgetful Judy just can't remember whether Libby and Miller ever discussed that name or how it got in there. Seems like a bunch of strange coincidences, no? That Miller just happened to have references to her name on the days she interviewed him. It's too bad she got the forgetfuls!

All of this raises more questions - and it sure would be nice if Forgetful Judy wasn't so forgetful. But the forgetfuls are going around these days. In fact, the city of DC seems to be experiencing a case of avian flu that strikes the memory receptors. Remember that Karl Rove has also come down with a bad case of the forgetfuls:

Rove has said he does not recall who the journalist was who first told him that Wilson's wife worked for the CIA, or when the conversation occurred, the lawyer said.

I don't know what it all means, but I definitely wouldn't want to be Scooter right now.

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Via Ed Kilgore, I read this interesting article by John Fund that provided an inside view of the internal process by which Miers was selected. You should read the whole thing, but a couple of things stand out: (1) Rove was apparently MIA; and (2) the administration once again adopted the same top-down, dissent-ignoring decision-making process that we’ve seen on display in so many other areas – with similar results.

On the issue of Rove, I’m assuming that Fund’s description is accurate and that Rove really wasn’t that involved with the Miers selection. That seems odd, but not entirely implausible given recent events. For one, maybe Rove was too busy dealing with his legal issues and grand jury testimony. For another, maybe it’s true that Rove and Bush are on frosty terms right now. Whatever the reason, it’s seems odd that Rove, had he been involved, would have misread the conservative base as badly as Bush and Card apparently did.

Anyway, I’ve long thought that Bush skeptics generally attribute far too much agency (or even magical powers) to Rove. Obviously, Rove is politically smart, but so is Bush and a lot of the other main players in the administration – or so I thought. But given the Katrina and Miers implosions (both happening while Rove was MIA or at least distracted), I’m beginning to wonder if the old bogeyman stories are actually accurate. Maybe this administration really is just Rove after all. And maybe Bush really is just a construction of Rove. Personally, I had always doubted the narrative where Rove was controlling everything and was therefore single-handedly responsible for the administration’s political acumen and success. But now I’m not so sure.

And if the Miers nomination is any indication of how the White House’s political radar works without Rove, then losing Rove to an indictment is going to be nothing short of catastrophic for the administration. As Fund explained, the Miers nomination seems to be the handiwork of Andy Card and Bush himself – and these two are not exactly the sharpest tacks in the tack box. Given what we’ve seen so far, I’m not sure they’re going to be up to the task without Turd Blossom there to keep them straight.

Another consequence of ejecting Rove from the White House is that internal chaos will surely follow. My hunch is that Rove is pretty much the dictator that makes the final calls and keeps internal disputes in check. In fact, I would compare him to Stonewall Jackson (I was watching the Ken Burns series last night.) Jackson was, by all accounts, an asshole. He marched his men to death at all hours without proper food or rest. He was eccentric and very strict – and possibly insane in an Apocalypse Now sense of insane. But even though they may not have liked him, his soldiers followed him because he won. Victory has a way of overcoming doubts and grievances.

But with Rove ejected, there doesn’t appear be a natural heir who could perform the same role and inspire the same confidence. With Rove out, it’s more likely that factions will develop, especially when a certain chunk of the administration staff disagrees with some major decision (such as Miers). With Rove, I suspect everyone went along and kept their mouths shut because it was Rove – and Rove had, after all, led to them success in every election (2002 included). But now, the decision-makers are going to be less confident and less able.

The second big issue I want to talk about is the flawed decision-making process that led to the selection of Miers. I’ve said my peace on this several times, but the point remains – this administration (even with Rove) is necessarily incapable of making good, informed decisions because of the process it uses to reach those decisions.

Once again, as with Iraq, the decision was made by a small group of uninformed individuals (in this case, Card and Bush). Rather than engaging in a more public vetting and opening the floor to constructive criticism or even dissent, Card deputized a staffer to vet Miers secretly. According to Fund’s article, it appears that almost all the staff was kept in the dark until after the decision had been made. And once it had been made, there was of course no tolerance of dissent.

[E]ven internal advice was shunned. Mr. Card is said to have shouted down objections to Ms. Miers at staff meetings. A senator attending the White House swearing-in of John Roberts four days before the Miers selection was announced was struck by how depressed White House staffers were during discussion of the next nominee. He says their reaction to him could have been characterized as, "Oh brother, you have no idea what's coming."

A last minute effort was made to block the choice of Ms. Miers, including the offices of Vice President Cheney and Attorney General Alberto Gonzales. It fell on deaf ears.

Fund also explained that, because Miers was such a close friend and because the vetter (William Kelley) was in line for her job, there were incentives for the vetter not to find problems with Miers (which, again, is an indictment of the process adopted).

Regardless of whether or not the vetting process was complete, it presented impossible conflicts of interest. Consider the position that Mr. Bush and Mr. Card put Mr. Kelley in. He would be a leading candidate to become White House counsel if Ms. Miers was promoted. He had an interest in not going against his earlier recommendation of her for the Supreme Court, or in angering President Bush, Ms. Miers's close friend. As journalist Jonathan Larsen has pointed out he also might not have wanted to "bring to light negative information that could torpedo her nomination, keeping her in the very job where she would be best positioned to punish Kelley were she to discover his role in vetting her."

In a sense, the administration’s disdain for empirical evidence, along with the give-and-take and dissent so necessary for sound policy, is comical. And it’s certainly amusing to see the results of that flawed decision-making process come back to hurt the President. The problem, though, is that it’s really not funny when you remember that this same process of top-down, dissent-free, evidence-scorning, crony policy-making is being used everywhere from Iraq to the budget to the environment. And it’s already hurt the country – and will continue to hurt it in the future.

It all traces back to the same source - and the same procedural flaws that led to Iraq and Katrina also led to Miers. It’s just that, with respect to Katrina and Miers, the consequences of the flawed policies followed quickly. With respect to Iraq and the budget, the consequences won't be fully visible for some time to come. But again, the principle is the same – bad policy-making eventually leads to harmful consequences. And I fear that the consequences of the Bush administration’s policy-making are only beginning to be felt.

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I've got a hectic day tomorrow, so I'm going to cheat and recycle a July post that seems quite appropriate today. It was called "Sweet Dreams, Karl."

Stay tuned this weekend. I've got a lot to say about the causes and implications of the meltdown. But for tonight, I'll just take solace in the fact that a man who has spent his life destroying and viciously slandering others is having a sleepless night of his own.
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Loosely adapted from Richard III, V.iii.:

Rove Sleeps

Enter the Ghost of Mark Kennedy, Alabama family-court judge

[To KARL ROVE]
Let me sit heavy on thy soul to-morrow!
Think, how thou stab'dst me in my election
In Alabama. Think, how thou called me,
Me who spent my life helping children,
A pedophile: despair, therefore, and die!

Ghost vanishes.

Enter the Ghost of Ann Richards

[To KARL ROVE]
When I was Governor,
By thee was I called a lesbian
Think on your lies and me: despair, and die!

Ghost vanishes.

Enter the Ghost of John McCain

[To KARL ROVE]
Let me sit heavy on thy soul to-morrow!
I, who endured torture for my country,
Was called unstable by your whispering,
You attacked my daughter in South Carolina,
To-morrow in the courtroom think on me,
And fall thy chickenhawk sword: despair, and die!--

Ghost vanishes.

Enter the Ghost of a young John Kerry in uniform

[To KARL ROVE]
Let me sit heavy on thy soul to-morrow,
Dream on thy slanders of my military service,
You – you who were too cowardly to serve,
Let fall thy lance: despair, and die!

Ghost vanishes

Enter the Ghost of Valerie Plame

[TO KARL ROVE]
The one you sought to punish
Now fills thy sleep with perturbations,
To-morrow in the battle think on me,
And fall thy edgeless sword: despair, and die!

The Ghosts vanish

KARL ROVE starts out of his dream

Give me another horse: bind up my wounds.
Have mercy, Jesu!--Soft! I did but dream.
O coward conscience, how dost thou afflict me!
The lights burn blue. It is now dead midnight.
Cold fearful drops stand on my trembling flesh.
What do I fear? myself? there's none else by:
Karl Rove loves Karl Rove; that is, I am I.
Is there a criminal here? No. Yes, I am:
Then fly. What, from myself? Great reason why:
Lest I revenge. What, myself upon myself?
Alack. I love myself. Wherefore? for any good
That I myself have done unto myself?
O, no! alas, I rather hate myself
For hateful deeds committed by myself!
I am a villain: yet I lie. I am not.
Fool, of thyself speak well: fool, do not flatter.
My conscience hath a thousand several tongues,
And every tongue brings in a several tale,
And every tale condemns me for a villain.
Perjury, perjury, in the high'st degree
Murder, stem murder, in the direst degree;
All several sins, all used in each degree,
Throng to the bar, crying all, Guilty! guilty!
I shall despair. There is no creature loves me;
And if I die, no soul shall pity me:
Nay, wherefore should they, since that I myself
Find in myself no pity to myself?
Methought the souls of all that I had murder'd
Came to my tent; and every one did threat
To-morrow's vengeance on the head of Karl Rove.

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Billmon writes the post so I don't have to:

One of the most fascinating -- and deeply amusing --things about the Great Miers Revolt has been watching the conservative rebels react with growing disgust and anger to the tactics the White House is using to try to bulldoze Shrub's pen pal through the confirmation process.

The Rovian game plan is, in all its essentials, the same sleazy blend of double speak, half-truths, non sequiturs, demagogic appeals and knees-to-the-groin smears that were used to steamroll opposition to the invasion of Iraq. But those who applauded then -- and again when the same patented blend of slime was used in the Cheney-Bush reelection campaign -- are howling about it now that they're the intended targets.

And as Kevin Drum notes, it keeps getting better.

Billmon summed my thoughts exactly. It's not so much the conservative civil war that I'm enjoying, it's the White House's use of its characteristic insanity-inducing lies, half-truths and nasty personal attacks upon its own that I'm (like Billmon) finding deeply satisfying. In the immortal words of Bruce Willis in Die Hard, "Welcome to the party, pal."

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I'm confused. I'm not entirely following the debate about how evangelicals are reacting to Miers. On the one hand, I've heard that the nomination enrages evangelical social conservatives. On the other hand, I've heard that evangelicals support Miers and resent the efforts to block her, which they consider to be elitist or anti-evangelical. So what gives? Where are they on this? I know where the conservative chattering class is, but what about the evangelical masses? Does Robertson speak for these people? (By the way, Robertson recently warned that the second coming may be nigh - citing hurricanes and earthquakes for evidence.)

I'd welcome comments from conservatives on this, because I'm just not following the debate. Is the problem that "evangelicals" are not the solid bloc of automatons that both the right and left think they are? If so, maybe both sides of the conservative schism looking at the crowd and seeing only their friends.

I'll post the best explanatory comment (or at least excerpts).

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Both Josh Marshall and Andrew Sullivan posted these interesting statistics from the Reason blog:

First Five Years, Percentage Changes in Real Discretionary Spending

LBJ: 25.2%
Nixon: -16.5%
Reagan: 11.9%
Clinton: -8.2%
Bush: 35.2%

I have a somewhat different take on these numbers. While it's true these numbers are (at least to some extent) a function of the individual administration, they also seem to be a function of divided government. The two biggest increases are LBJ and Bush - two presidents who enjoyed sympathetic majorities in both houses of Congress. The biggest decreases were Nixon and Clinton - both of whom faced hostile majorities. Reagan doesn't fit in all that well, but spending under him was still lower than under LBJ and Bush.

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While I was away, it seems we had new scattered flare-ups between the so-called liberal hawks and the liberal doves on Iraq. Ignoring the merits of this argument, the one thing that annoys me to no end about it is the use of the words “hawk” and “dove” to describe the competing camps.

I don’t have any hard evidence to support this (or to support much of anything I say really), but I get the sense that a lot of progressives have turned on Lakoff. That’s unfortunate, I think, and is based on a misunderstanding of Lakoff’s arguments. For many Democrats, I think Lakoff has morphed into a straw man who stands for the idea that pretty words are all that matters. Others (rightly) believe that his specific proposals for new narratives were silly. But that’s not the value that Lakoff brought to the table. His fundamental insight was that people conceptualize political issues within broader stories or narratives. Another crucial contribution – and one that Frank Luntz understands well – is that words create and color the political narratives we develop in our mind (and impose upon the world).

In short, Lakoff’s contribution was showing the relationship between linguistics and politics. And on that, I think he was truly on to something. Words do matter. And the words we use – or the linguistic labels we apply – do color our perceptions of political issues. For instance, the term “partial-birth abortion” casts a dark shadow upon a procedure that might be conceptualized differently if it were known only as a “D & X procedure.”

Same deal with “hawk” and “dove.” These terms are filled to the brim with implicit value judgments and they color our perceptions accordingly. A bigger concern is that the terms themselves are arguments “for war” generally without regard to context or individual circumstances. Take the word “hawk.” A hawk is a cool, fierce predator who is a badass. It’s good to be called a “hawk.” People want to be a “hawk,” or at least “hawkish.” You gotta get those sharp talons attributed to your worldview to hang out with the cool kids.

“Dove,” by contrast, means . . . well, it means pussy. No one wants to be called a “dove.” And I suspect that people who would have otherwise opposed the Iraq war supported it just to avoid being called a synonym of “pussy bird.” Even hard-core pacificists don’t want to be called “dove” because “doves” suck. They’re fluffy and white and soft. That’s great if you’re talking about Snuggle detergent, but less great when you’re in a political debate.

I suspect the Great Intra-Liberal Iraq Debate would be different if the camps were not called “hawks” and “doves.” But because they are, in any debate between “hawks” and “doves,” the “hawks” will always be right even if they’re wrong because they’re the (cue Metallica riff and echo) HAWKS. And the “doves” – because doves are pussies – will be wrong even if they’re right. Because they are (whimper, whimper) “doves.”

Getting away from these fowl-centric points, I’ve got other problems with this particular dichotomy. For one, I don’t like the idea that “willingness to go to war” is an inherently positive characteristic. In America today, and within respectable Democratic circles, it is. Willingness to go to war is a sign of “hawkishness” (good) or “centrism” (also good). On an aside, “centrism” is another one of those words that colors and constitutes our perceptions. To be willing to fight is to be “centrist,” which means good.

But why is that good? If anything, “good” in my book means a heavy presumption against fighting. Now I don’t want that particular position to be classified as “pussy bird,” but that is my position. And that’s not to say that we should never go to war. I simply don’t know how pacifism holds up against the examples of the Civil War and World War II. Sometimes you have to go to war – and it’s awful and it’s tragic even when it's necessary. In fact, it’s the “necessary” mixed with the “awful” that makes it tragic.

The point is that praising a general abstract willingness to go to war divorced from circumstances strikes me as insane. War can never be justified as an abstract proposition. It can only be justified within a specific context that requires it. That’s why this notion of hawks and doves – in the abstract – seems so misguided to me and skews the debate in a way that I don’t think it should be skewed. The “dove” position is often the right one, no matter how dopey the label for that position is.

A second problem I have with the hawk/dove dichotomy is that it squeezes complex spectrums of views into an either/or dichotomy. For instance, take my positions on recent conflicts. I strongly opposed Iraq. I strongly supported Afghanistan. I would have strongly supported sending troops to Rwanda. I was lukewarm on Kosovo. And I opposed the first Gulf War. Now does that make me a fierce hawk with a big ruffled chest and razor-sharp talons? Or does that make me a fluffy white pussy bird? Beats me. But again, regardless of the appropriate label for this position, I have a heavy presumption against wars. And claims of abstract “hawkishness,” to quote Shania Twain, don’t impress me much.

So let’s have our debate on Iraq. But let’s stop using “hawk” to classify those who supported it and “dove” for those who did not. Let’s use new, more context-specific words. “Wrong” and “right” come to mind.

[That last line was a joke, not snark. For those who honestly believed WMDs were there, I don’t think supporting the war was a wholly absurd position.]