The Obfuscation Report

I came here today because I believe that American democracy is in grave danger. It is no longer possible to ignore the strangeness of our public discourse . I know that I am not the only one who feels that something has gone basically and badly wrong in the way America's fabled "marketplace of ideas" now functions.

How many of you, I wonder, have heard a friend or a family member in the last few years remark that it's almost as if America has entered "an alternate universe"?

I thought maybe it was an aberration when three-quarters of Americans said they believed that Saddam Hussein was responsible for attacking us on September 11, 2001. But more than four years later, between a third and a half still believe Saddam was personally responsible for planning and supporting the attack.

At first I thought the exhaustive, non-stop coverage of the O.J. trial was just an unfortunate excess that marked an unwelcome departure from the normal good sense and judgment of our television news media. But now we know that it was merely an early example of a new pattern of serial obsessions that periodically take over the airwaves for weeks at a time.

Are we still routinely torturing helpless prisoners, and if so, does it feel right that we as American citizens are not outraged by the practice? And does it feel right to have no ongoing discussion of whether or not this abhorrent, medieval behavior is being carried out in the name of the American people? If the gap between rich and poor is widening steadily and economic stress is mounting for low-income families, why do we seem increasingly apathetic and lethargic in our role as citizens?

On the eve of the nation's decision to invade Iraq, our longest serving senator, Robert Byrd of West Virginia, stood on the Senate floor asked: "Why is this chamber empty? Why are these halls silent?"

The decision that was then being considered by the Senate with virtually no meaningful debate turned out to be a fateful one. A few days ago, the former head of the National Security Agency, Retired Lt. General William Odom, said, "The invasion of Iraq, I believe, will turn out to be the greatest strategic disaster in U.S. history."

But whether you agree with his assessment or not, Senator Byrd's question is like the others that I have just posed here: he was saying, in effect, this is strange, isn't it? Aren't we supposed to have full and vigorous debates about questions as important as the choice between war and peace?

Those of us who have served in the Senate and watched it change over time, could volunteer an answer to Senator Byrd's two questions: the Senate was silent on the eve of war because Senators don't feel that what they say on the floor of the Senate really matters that much any more. And the chamber was empty because the Senators were somewhere else: they were in fundraisers collecting money from special interests in order to buy 30-second TVcommercials for their next re-election campaign.

In the aftermath of Hurricane Katrina, there was - at least for a short time - a quality of vividness and clarity of focus in our public discourse that reminded some Americans - including some journalists - that vividness and clarity used to be more common in the way we talk with one another about the problems and choices that we face. But then, like a passing summer storm, the moment faded.

In fact there was a time when America's public discourse was consistently much more vivid, focused and clear. Our Founders, probably the most literate generation in all of history, used words with astonishing precision and believed in the Rule of Reason.

Their faith in the viability of Representative Democracy rested on their trust in the wisdom of a well-informed citizenry. But they placed particular emphasis on insuring that the public could be well-informed. And they took great care to protect the openness of the marketplace of ideas in order to ensure the free-flow of knowledge.

The values that Americans had brought from Europe to the New World had grown out of the sudden explosion of literacy and knowledge after Gutenberg's disruptive invention broke up the stagnant medieval information monopoly and triggered the Reformation, Humanism, and the Enlightenment and enshrined a new sovereign: the "Rule of Reason."

Indeed, the self-governing republic they had the audacity to establish was later named by the historian Henry Steele Commager as "the Empire of Reason."

Our founders knew all about the Roman Forum and the Agora in ancient Athens. They also understood quite well that in America, our public forum would be an ongoing conversation about democracy in which individual citizens would participate not only by speaking directly in the presence of others -- but more commonly by communicating with their fellow citizens over great distances by means of the printed word. Thus they not only protected Freedom of Assembly as a basic right, they made a special point - in the First Amendment - of protecting the freedom of the printing press.

Their world was dominated by the printed word. Just as the proverbial fish doesn't know it lives in water, the United States in its first half century knew nothing but the world of print: the Bible, Thomas Paine's fiery call to revolution, the Declaration of Independence, our Constitution , our laws, the Congressional Record, newspapers and books.

Though they feared that a government might try to censor the printing press - as King George had done - they could not imagine that America's public discourse would ever consist mainly of something other than words in print.

And yet, as we meet here this morning, more than 40 years have passed since the majority of Americans received their news and information from the printed word. Newspapers are hemorrhaging readers and, for the most part, resisting the temptation to inflate their circulation numbers. Reading itself is in sharp decline, not only in our country but in most of the world. The Republic of Letters has been invaded and occupied by television.

Radio, the internet, movies, telephones, and other media all now vie for our attention - but it is television that still completely dominates the flow of information in modern America. In fact, according to an authoritative global study, Americans now watch television an average of four hours and 28 minutes every day -- 90 minutes more than the world average.

When you assume eight hours of work a day, six to eight hours of sleep and a couple of hours to bathe, dress, eat and commute, that is almost three-quarters of all the discretionary time that the average American has. And for younger Americans, the average is even higher.

The internet is a formidable new medium of communication, but it is important to note that it still doesn't hold a candle to television. Indeed, studies show that the majority of Internet users are actually simultaneously watching television while they are online. There is an important reason why television maintains such a hold on its viewers in a way that the internet does not, but I'll get to that in a few minutes.

Television first overtook newsprint to become the dominant source of information in America in 1963. But for the next two decades, the television networks mimicked the nation's leading newspapers by faithfully following the standards of the journalism profession. Indeed, men like Edward R. Murrow led the profession in raising the bar.

But all the while, television's share of the total audience for news and information continued to grow -- and its lead over newsprint continued to expand. And then one day, a smart young political consultant turned to an older elected official and succinctly described a new reality in America's public discourse: "If it's not on television, it doesn't exist."

But some extremely important elements of American Democracy have been pushed to the sidelines . And the most prominent casualty has been the "marketplace of ideas" that was so beloved and so carefully protected by our Founders. It effectively no longer exists.

It is not that we no longer share ideas with one another about public matters; of course we do. But the "Public Forum" in which our Founders searched for general agreement and applied the Rule of Reason has been grossly distorted and "restructured" beyond all recognition.

And here is my point: it is the destruction of that marketplace of ideas that accounts for the "strangeness" that now continually haunts our efforts to reason together about the choices we must make as a nation.

Whether it is called a Public Forum, or a "Public Sphere" , or a marketplace of ideas, the reality of open and free public discussion and debate was considered central to the operation of our democracy in America's earliest decades.

In fact, our first self-expression as a nation - "We the People" - made it clear where the ultimate source of authority lay. It was universally understood that the ultimate check and balance for American government was its accountability to the people. And the public forum was the place where the people held the government accountable. That is why it was so important that the marketplace of ideas operated independent from and beyond the authority of government.

The three most important characteristics of this marketplace of ideas were:

1) It was open to every individual, with no barriers to entry, save the necessity of literacy. This access, it is crucial to add, applied not only to the receipt of information but also to the ability to contribute information directly into the flow of ideas that was available to all;
2) The fate of ideas contributed by individuals depended, for the most part, on an emergent Meritocracy of Ideas. Those judged by the market to be good rose to the top, regardless of the wealth or class of the individual responsible for them;
3) The accepted rules of discourse presumed that the participants were all governed by an unspoken duty to search for general agreement. That is what a "Conversation of Democracy" is all about.

What resulted from this shared democratic enterprise was a startling new development in human history: for the first time, knowledge regularly mediated between wealth and power.

The liberating force of this new American reality was thrilling to all humankind. Thomas Jefferson declared, "I have sworn upon the alter of God eternal hostility against every form of tyranny over the mind of man."
It ennobled the individual and unleashed the creativity of the human spirit. It inspired people everywhere to dream of what they could yet become. And it emboldened Americans to bravely explore the farther frontiers of freedom - for African Americans, for women, and eventually, we still dream, for all.

And just as knowledge now mediated between wealth and power, self-government was understood to be the instrument with which the people embodied their reasoned judgments into law. The Rule of Reason under-girded and strengthened the rule of law.

But to an extent seldom appreciated, all of this - including especially the ability of the American people to exercise the reasoned collective judgments presumed in our Founders' design -- depended on the particular characteristics of the marketplace of ideas as it operated during the Age of Print.

Consider the rules by which our present "public forum" now operates, and how different they are from the forum our Founders knew. Instead of the easy and free access
individuals had to participate in the national conversation by means of the printed word, the world of television makes it virtually impossible for individuals to take part in what passes for a national conversation today.

Inexpensive metal printing presses were almost everywhere in America. They were easily accessible and operated by printers eager to typeset essays, pamphlets, books or flyers.

Television stations and networks, by contrast, are almost completely inaccessible to individual citizens and almost always uninterested in ideas contributed by individual citizens.

Ironically, television programming is actually more accessible to more people than any source of information has ever been in all of history. But here is the crucial distinction: it is accessible in only one direction; there is no true interactivity, and certainly no conversation.

The number of cables connecting to homes is limited in each community and usually forms a natural monopoly. The broadcast and satellite spectrum is likewise a scarce and limited resource controlled by a few. The production of programming has been centralized and has usually required a massive capital investment. So for these and other reasons, an ever-smaller number of large corporations control virtually all of the television programming in America.

Soon after television established its dominance over print, young people who realized they were being shut out of the dialogue of democracy came up with a new form of expression in an effort to join the national conversation: the "demonstration." This new form of expression, which began in the 1960s, was essentially a poor quality theatrical production designed to capture the attention of the television cameras long enough to hold up a sign with a few printed words to convey, however plaintively, a message to the American people. Even this outlet is now rarely an avenue for expression on national television.

So, unlike the marketplace of ideas that emerged in the wake of the printing press, there is virtually no exchange of ideas at all in television's domain. My partner Joel Hyatt and I are trying to change that - at least where Current TV is concerned. Perhaps not coincidentally, we are the only independently owned news and information network in all of American television.

It is important to note that the absence of a two-way conversation in American television also means that there is no "meritocracy of ideas" on television. To the extent that there is a "marketplace" of any kind for ideas on television, it is a rigged market, an oligopoly, with imposing barriers to entry that exclude the average citizen.

The German philosopher, Jurgen Habermas, describes what has happened as "the refeudalization of the public sphere." That may sound like gobbledygook, but it's a phrase that packs a lot of meaning. The feudal system which thrived before the printing press democratized knowledge and made the idea of America thinkable, was a system in which wealth and power were intimately intertwined, and where knowledge played no mediating role whatsoever. The great mass of the people were ignorant. And their powerlessness was born of their ignorance.

It did not come as a surprise that the concentration of control over this powerful one-way medium carries with it the potential for damaging the operations of our democracy. As early as the 1920s, when the predecessor of television, radio, first debuted in the United States, there was immediate apprehension about its potential impact on democracy. One early American student of the medium wrote that if control of radio were concentrated in the hands of a few, "no nation can be free."

As a result of these fears, safeguards were enacted in the U.S. -- including the Public Interest Standard, the Equal Time Provision, and the Fairness Doctrine - though a half century later, in 1987, they were effectively repealed. And then immediately afterwards, Rush Limbaugh and other hate-mongers began to fill the airwaves.

And radio is not the only place where big changes have taken place. Television news has undergone a series of dramatic changes. The movie "Network," which won the Best Picture Oscar in 1976, was presented as a farce but was actually a prophecy. The journalism profession morphed into the news business, which became the media industry and is now completely owned by conglomerates.

The news divisions - which used to be seen as serving a public interest and were subsidized by the rest of the network - are now seen as profit centers designed to generate revenue and, more importantly, to advance the larger agenda of the corporation of which they are a small part. They have fewer reporters, fewer stories, smaller budgets, less travel, fewer bureaus, less independent judgment, more vulnerability to influence by management, and more dependence on government sources and canned public relations hand-outs. This tragedy is compounded by the ironic fact that this generation of journalists is the best trained and most highly skilled in the history of their profession. But they are usually not allowed to do the job they have been trained to do.

The present executive branch has made it a practice to try and control and intimidate news organizations: from PBS to CBS to Newsweek. They placed a former male escort in the White House press pool to pose as a reporter - and then called upon him to give the president a hand at crucial moments. They paid actors to make make phony video press releases and paid cash to some reporters who were willing to take it in return for positive stories. And every day they unleash squadrons of digital brownshirts to harass and hector any journalist who is critical of the President.

For these and other reasons, The US Press was recently found in a comprehensive international study to be only the 27th freest press in the world. And that too seems strange to me.

Among the other factors damaging our public discourse in the media, the imposition by management of entertainment values on the journalism profession has resulted in scandals, fabricated sources, fictional events and the tabloidization of mainstream news. As recently stated by Dan Rather - who was, of course, forced out of his anchor job after angering the White House - television news has been "dumbed down and tarted up."

The coverage of political campaigns focuses on the "horse race" and little else. And the well-known axiom that guides most local television news is "if it bleeds, it leads." (To which some disheartened journalists add, "If it thinks, it stinks.")

In fact, one of the few things that Red state and Blue state America agree on is that they don't trust the news media anymore.

Clearly, the purpose of television news is no longer to inform the American people or serve the public interest. It is to "glue eyeballs to the screen" in order to build ratings and sell advertising. If you have any doubt, just look at what's on: The Robert Blake trial. The Laci Peterson tragedy. The Michael Jackson trial. The Runaway Bride. The search in Aruba. The latest twist in various celebrity couplings, and on and on and on.

And more importantly, notice what is not on: the global climate crisis, the nation's fiscal catastrophe, the hollowing out of America's industrial base, and a long list of other serious public questions that need to be addressed by the American people.

One morning not long ago, I flipped on one of the news programs in hopes of seeing information about an important world event that had happened earlier that day. But the lead story was about a young man who had been hiccupping for three years. And I must say, it was interesting; he had trouble getting dates. But what I didn't see was news.

This was the point made by Jon Stewart, the brilliant host of "The Daily Show," when he visited CNN's "Crossfire": there should be a distinction between news and entertainment.

And it really matters because the subjugation of news by entertainment seriously harms our democracy: it leads to dysfunctional journalism that fails to inform the people. And when the people are not informed, they cannot hold government accountable when it is incompetent, corrupt, or both.

One of the only avenues left for the expression of public or political ideas on television is through the purchase of advertising, usually in 30-second chunks. These short commercials are now the principal form of communication between candidates and voters. As a result, our elected officials now spend all of their time raising money to purchase these ads.

That is why the House and Senate campaign committees now search for candidates who are multi-millionaires and can buy the ads with their own personal resources. As one consequence, the halls of Congress are now filling up with the wealthy.

Campaign finance reform, however well it is drafted, often misses the main point: so long as the only means of engaging in political dialogue is through purchasing expensive television advertising, money will continue by one means or another to dominate American politic s. And ideas will no longer mediate between wealth and power.

And what if an individual citizen, or a group of citizens wants to enter the public debate by expressing their views on television? Since they cannot simply join the conversation, some of them have resorted to raising money in order to buy 30 seconds in which to express their opinion. But they are not even allowed to do that.

Moveon.org tried to buy ads last year to express opposition to Bush's Medicare proposal which was then being debated by Congress. They were told "issue advocacy" was not permissible. Then, one of the networks that had refused the Moveon ad began running advertisements by the White House in favor of the President's Medicare proposal. So Moveon complained and the White House ad was temporarily removed. By temporary, I mean it was removed until the White House complained and the network immediately put the ad back on, yet still refused to present the Moveon ad.

The advertising of products, of course, is the real purpose of television. And it is difficult to overstate the extent to which modern pervasive electronic advertising has reshaped our society. In the 1950s, John Kenneth Galbraith first described the way in which advertising has altered the classical relationship by which supply and demand are balanced over time by the invisible hand of the marketplace. According to Galbraith, modern advertising campaigns were beginning to create high levels of demand for products that consumers never knew they wanted, much less needed.

The same phenomenon Galbraith noticed in the commercial marketplace is now the dominant fact of life in what used to be America's marketplace for ideas. The inherent value or validity of political propositions put forward by candidates for office is now largely irrelevant compared to the advertising campaigns that shape the perceptions of voters.

Our democracy has been hallowed out. The opinions of the voters are, in effect, purchased, just as demand for new products is artificially created. Decades ago Walter Lippman wrote, "the manufacture of consent...was supposed to have died out with the appearance of democracy...but it has not died out. It has, in fact, improved enormously in technique...under the impact of propaganda, it is no longer plausible to believe in the original dogma of democracy."

Like you, I recoil at Lippman's cynical dismissal of America's gift to human history. But in order to reclaim our birthright, we Americans must resolve to repair the systemic decay of the public forum and create new ways to engage in a genuine and not manipulative conversation about our future. Americans in both parties should insist on the re-establishment of respect for the Rule of Reason. We must, for example, stop tolerating the rejection and distortion of science. We must insist on an end to the cynical use of pseudo studies known to be false for the purpose of intentionally clouding the public's ability to discern the truth.

I don't know all the answers, but along with my partner, Joel Hyatt, I am trying to work within the medium of television to recreate a multi-way conversation that includes individuals and operates according to a meritocracy of ideas. If you would like to know more, we are having a press conference on Friday morning at the Regency Hotel.

We are learning some fascinating lessons about the way decisions are made in the television industry, and it may well be that the public would be well served by some changes in law and policy to stimulate more diversity of viewpoints and a higher regard for the public interest. But we are succeeding within the marketplace by reaching out to individuals and asking them to co-create our network.

The greatest source of hope for reestablishing a vigorous and accessible marketplace for ideas is the Internet. Indeed, Current TV relies on video streaming over the Internet as the means by which individuals send us what we call viewer-created content or VC squared. We also rely on the Internet for the two-way conversation that we have every day with our viewers enabling them to participate in the decisions on programming our network.

I know that many of you attending this conference are also working on creative ways to use the Internet as a means for bringing more voices into America's ongoing conversation. I salute you as kindred spirits and wish you every success.

I want to close with the two things I've learned about the Internet that are most directly relevant to the conference that you are having here today.

First, as exciting as the Internet is, it still lacks the single most powerful characteristic of the television medium; because of its packet-switching architecture, and its continued reliance on a wide variety of bandwidth connections (including the so-called "last mile" to the home), it does not support the real-time mass distribution of full-motion video.

Make no mistake, full-motion video is what makes television such a powerful medium. Our brains - like the brains of all vertebrates - are hard-wired to immediately notice sudden movement in our field of vision. We not only notice, we are compelled to look. When our evolutionary predecessors gathered on the African savanna a million years ago and the leaves next to them moved, the ones who didn't look are not our ancestors. The ones who did look passed on to us the genetic trait that neuroscientists call "the establishing reflex." And that is the brain syndrome activated by television continuously - sometimes as frequently as once per second. That is the reason why the industry phrase, "glue eyeballs to the screen," is actually more than a glib and idle boast. It is also a major part of the reason why Americans watch the TV screen an average of four and a half hours a day.

It is true that video streaming is becoming more common over the Internet, and true as well that cheap storage of streamed video is making it possible for many young television viewers to engage in what the industry calls "time shifting" and personalize their television watching habits. Moreover, as higher bandwidth connections continue to replace smaller information pipelines, the Internet's capacity for carrying television will continue to dramatically improve. But in spite of these developments, it is television delivered over cable and satellite that will continue for the remainder of this decade and probably the next to be the dominant medium of communication in America's democracy. And so long as that is the case, I truly believe that America's democracy is at grave risk.

The final point I want to make is this: We must ensure that the Internet remains open and accessible to all citizens without any limitation on the ability of individuals to choose the content they wish regardless of the Internet service provider they use to connect to the Worldwide Web. We cannot take this future for granted. We must be prepared to fight for it because some of the same forces of corporate consolidation and control that have distorted the television marketplace have an interest in controlling the Internet marketplace as well. Far too much is at stake to ever allow that to happen.

We must ensure by all means possible that this medium of democracy's future develops in the mold of the open and free marketplace of ideas that our Founders knew was essential to the health and survival of freedom.

# posted by David @ Thursday, October 06, 2005 0 comments

To put it charitably, Oklahoma Attorney General Drew Edmondson didn't read the court decision he sought to overturn. Still, 30 other state attorneys general co-signed Edmondson's amicus brief before the U.S. Supreme Court. All endorsed Edmondson's claim that the D.C. Circuit Court ruling against Judith Miller "bucks the clear policy of virtually all the states".

"State policy" in this context meant recognizing of a "reporter's privilege" that, according to Edmondson, would exempt Miller from testifying before the Plame grand jury. Edmondson wrote: "In applying the privilege, most states employ a balancing test that weighs the public interest in protecting a reporter's newsgathering and the free flow of information against the relevance of the information, the availability of alternative sources and the public interest in compelling disclosure."

But the D.C. Circuit Court of Appeals ruled against Miller by employing the exact same balancing test. The Federal judges ruled unanimously that the clear-cut balance was against Miller.

So why would 30 attorneys general embarrass themselves before the Supreme Court? Answer: Because their publicity stunt never would never get any real scrutiny. Miller's flimsy legal arguments always got a free pass from the media.

Miller's latest assertion - she waited a year to hear Scooter Libby's waiver was sincere - is the latest in her litany of headscratchers. It's not too late to subject the New York Times reporter's statements to a reality check. This would be a first.

1. "Forty-nine states, all but one state, in our country have now given journalists' sources protection under the state law or by judicial action.. So the federal standard is really out of whack with what the will of the states is at this point." News Forum with Gabe Pressman (WNBC New York) June 19, 2005

But 49 states would never excuse Miller from testifying. Under the qualified privilege extended by most states, Miller would still go to jail. Only 14 states offer an absolute privilege that exempting Miller from testifying under any circumstances. But state laws do not protect national security; that's the exclusive domain of the Federal government. So any argument about "bucking state policy" in Miller's case is fatally flawed.

2."If psychotherapists do not have to tell grand juries about what their patients tell them, surely the public's right to know is just as important in terms of protecting individuals who come forth and talk about wrongdoing to the press." Pressman, June 19, 2005

A reporter's privilege is not the same as a doctor or lawyer's privilege. Nor should it ever be.

First, doctors and lawyers have no privilege protecting client statements made in pursuit of a crime. If you ask your lawyer, "What's the best Panamanian bank for money laundering?" Or tell your doctor, "Double my oxycontin prescription; I'm trying it on my 12-year-old," your words have no protection from the law. Ever wonder why Tony Soprano never talks shop with his psychiatrist?

Conversely, a reporter's privilege is designed to protect illegal statements, because the confidential source often violates his legal duty of non-disclosure.

Second, doctors and lawyers are licensed and duty-bound to enforce legal behavior. Priests are regulated by the Catholic Church. Journalism is open to anyone with access to the internet, where ethical lapses are irrelevant. Which is why 35 states and all federal circuits recognize the need for a reporter's privilege, but also deem judges - not journalists - as final arbiters deciding what stays out of the court. Again, nobody believes that Scooter Libby came forth to "talk about wrongdoing."

3. "I didn't write a word. So I'm doubly adamant that I'm not going to talk about individuals who may have come to me with information that I didn't even write." The Charlie Rose Show February 22, 2005

On planet earth, witnesses are called to testify about what they observed, not only about what they did. Jay Leno testified in the Michael Jackson case even though he did nothing. Here, Miller panders to the dumb and dumber set.

4. "[T]here are many ways in which the government can get this information before [special counsel] Fitzgerald subpoenas journalists." -- Pressman

A flat out lie. Writing for the entire three-judge panel from the D.C. Circuit Court of Appeals, Judge David Tatel wrote, "we must take care to ensure that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has."

5. "And I think part of the problem here is we are dealing with a special prosecutor. And you don't have kind of the normal political balancing tests. .we've seen this again and again with special prosecutors, where they really do carry on with an extraordinary zeal, without any checks and balances of politics or anything else." The Charlie Rose Show February 22, 2005

Again, the D.C. Circuit decision discredits Miller's claim. Judge Tatel scrutinized the case for any specter of prosecutorial abuse. "The dynamics of leak inquiries afford a particularly compelling reason for judicial inquiry of prosecutorial judgments" he wrote, because the prosecutor "may pursue the source with excessive zeal." So the Court itself should consider whether Miller's "sources released information more harmful than newsworthy."

"Were the leak at issue in this case less harmful to national security or more vital to the public debate, or had special counsel failed to demonstrate the grand jury's need for the evidence," he wrote, "I might have supported the motion to quash [the subpoena to testify]."

6. "Victoria Toensing.. helped write the law that protects the identity of CIA agents. And her view is that no crime was committed here because Ms. Plame may not meet the standard of what constitutes a covert agent; that is, she may not have been operating undercover. The person or people who leaked her name may not have intended to harm her or damage national security." -- Pressman

As Miller's cheerleader, attorney Victoria Toensing spearheaded a media campaign to misrepresent the law. Toensing's talking points are recounted in her amicus brief, submitted with Bruce Sanford of Baker & Hostetler, to request a rehearing of Miller's case before a full panel on the D.C. Circuit. The brief argued that Miller and Matt Cooper should not be compelled to testify before the grand jury because of "ample evidence on the public record to cast considerable doubt that a crime has been committed."

Toensing put the cart before the horse. Grand juries are gathered to determine if a crime has been committed. Since grand jury proceedings are secret, Toensing didn't know what she was talking about. She presumes the only possible crime under investigation is the Intelligence Identities Protection Act of 1982. But any prosecutor would also investigate for perjury, obstruction of justice, conspiracy, or other crimes against national security.

In the quote above, Miller paraphrased Toensing's deceptive spin on the Identities Protection Act. Toensing claimed, on WashingtonPost.com, "Just giving someone a false identity and a front does not meet the legal standard of affirmative measures [to protect Plame's cover] especially when she has a desk job at Langley and is driving in and out every day." But no court ruling or legislative history supports Toensing's interpretation.

The "ample evidence" used in Toensing's brief is a joke. To prove that "the CIA was cavalier about, if not complicit in, the publishing of Plame's name" Toensing cites: (a) the esteemed Washington Times, using anonymous sources to claim Plame's covert identity was first disclosed in the mid-1990's, (b) Robert Novak's claim that the CIA "failed to give him a serious request not to publish her name," and most ridiculously, (c) the fact that Joseph Wilson publicly spoke about his travels to Niger on behalf of the CIA - as if somehow that made Plame's CIA-status an open secret and somehow newsworthy. Toensing embellishes her arguments with bitchy suggestions about the Joseph Wilson and the CIA. But judges aren't stupid. They know the difference between fanciful speculation and real evidence.

Nor do stupid lawyers work for Baker & Hostetler, Reuters, ABC News or any of the 36 major news organizations signing on this embarrassing work product. But, to paraphrase Tina turner - what's law got to do with it? The Washington Post reported "The 40-page brief [only 15 pages of substantive text], . argues that there is 'ample evidence . . . to doubt that a crime has been committed' in the case." And, "Attorneys for the news organizations said yesterday that their decision to submit the brief underscores deep concern in the journalism community over special prosecutor Patrick Fitzgerald's tactics." In the interest of brevity, the Post offered no specifics regarding the "ample evidence" or the prosecutor's "tactics."

7. MILLER: "[S]omething that is even more astonishing to some of us, that the reasons that one of the justices gave for deciding against us are redacted. That is, they're censored from the ruling. So, we don't even know a lot about the thinking of one of the three judges. And I just find this an astonishing turn of events."
BLITZER: "Redacted, presumably for security classified purposes."
MILLER: "Exactly."
CNN: Wolf Blitzer Reports February 15, 2005

Miller knew perfectly well the reason why Judge David Tatel ruled against her and Cooper. What she didn't see was four pages of redacted evidence used in support of that reason. All this conforms to longstanding law. For over 200 years, grand jury proceedings have been secret. Well-established precedent says that a judge, based on his ex parte review of evidence, may impose exceptions to a professional privilege against testifying before the grand jury. Judge Tatel wrote: "Just as due process poses no barrier to forcing an attorney to testify based on the court's examination of the evidence, unseen by the lawyer, that the client sought legal advice in pursuit of a crime, neither does it preclude compulsion of a reporter's testimony based on a comparable review of evidence, likewise unseen by the reporter, that a source engaged in a harmful leak."

8. "What's at stake here is the public's right to know, because we depend for our business on confidential sources, as you've seen with Watergate, as you've seen with the Pentagon papers, as you've seen with Abu Ghraib, as you've seen with the Enron abuses. All of that, all of those stories depended on an individual coming forth and speaking to the press often at the risk of their jobs, their careers, and they ask us in exchange, when their jobs are in jeopardy or their lives are in jeopardy, to protect their identity but use the information. And we must really carry through with our pledges when we promise to keep somebody's identity confidential, or people won't come forth. So this is not about me. It's not about The New York Times or Time or Matt Cooper. It's about the public's right to know." -- Pressman

Watergate and Enron? What about "the public's right to know" if White House officials committed crimes and compromised national security? Or is that the sacred and private domain of a few in the Washington press corps?

When she spoke with Scooter Libby on July 8, 2003, Miller knew that her source had credibility problems over uranium sales from Niger. One day earlier, the National Security Agency had conceded "the reference to Iraq's attempt to acquire uranium from Africa should not have been included in the State of the Union speech" rendering Joe Wilson's motivations all but irrelevant. But Libby's boss, Dick Cheney, was known for trashing those who questioned his WMD intelligence.

Fourth months prior, Mohamed ElBaradei, head of the International Atomic Energy Agency, announced that that the CIA's "documents" used as proof of a Niger uranium sale were "not authentic." Sources cited "crude errors," like a "childlike signature" and stationary from a military government that had been out of power for over a decade.

Cheney's response: "Mr. ElBaradei frankly is wrong. And I think if you look at the track record of the International Atomic Energy Agency and this kind of issue, especially where Iraq's concerned, they have consistently underestimated or missed what it was Saddam Hussein was doing. I don't have any reason to believe they're any more valid this time than they've been in the past." Prophetic words indeed.

So why did Miller believe Libby deserved a pledge of confidentiality? Let's get real. Miller isn't protecting anyone's "right to know". She's protecting the dirty little secrets of Washington insiders like herself.

# posted by David @ Thursday, October 06, 2005 0 comments

You know which countries have their political leaders make secret decisions with their religious leaders? If you answered the Islamic Republic of Iran, you'd be right. But apparently you would also be right if you answered the United States of America.

When asked why he is supporting President Bush's new nominee to the Supreme Court, Reverend Dobson, founder of the Focus on the Family, said, "I can't reveal it all, because I do know things that I'm privy to that I can't describe, because of confidentiality."

What is the White House keeping secret from the rest of the country but sharing with Reverend Dobson?

This is what religious republics do. They take counsel with their imams, ayatollahs, shamans or reverends. They share secret information, close out the public and make decisions based on strange interpretations of their religion. This isn't the America I signed up for. I signed up for a secular democracy where politicians were held to account and citizens made law, not cloaked religious figures. If that's what I wanted I could have stayed in a Muslim country.

And to be fair, at this point Turkey, where I am originally from, appears to be significantly more secular than the United States. I wonder if they'd let the US into the EU with our death penalty, fundamentalist leadership and our clerics intertwined with our government.

You think I'm exaggerating? Then answer why Reverend Dobson seems to know more about the Supreme Court nominee than our Senators.

"When you put all the other information that I have been able to gather -- and you'll have to trust me on this one -- when you know some of the things that I know, that I probably shouldn't know, that take me in this direction, you will understand why I have said, with fear and trepidation, why I have said why I believe that Harriet Miers will be a good justice." -- Reverend James Dobson

At least, he's got one thing right -- he shouldn't know whatever the rest of us don't know, and apparently the White House is keeping secret from us. I wonder how Senator Biden is going to feel about being left out of the real decision making process. The White House has already talked to its reverends, the die is cast.

At the very least, the Senators should get Dobson in front of their committee and under oath ask him what secrets he's keeping from the American people. Likewise, for the unctuous Karl Rove, who is never far from a dark secret.

If you're afraid for our republic, don't worry, Reverend Dobson says he is open to changing his mind depending on what Zeus ... I mean God whispers in his ear. He implored God on his radio show, "If this is not the person you want on that Supreme Court, all you have to do is tell me so, and do it through any means you want to."

Presumably, the good reverend has now put on his tin-foil hat and is ready to receive Jupiter's ... I mean Jesus' message. Are these people serious? Is Reverend Dobson so arrogant as to believe that God will communicate with him directly? And to give him a message so specific as to tell him whether he should support Harriet Miers for the Supreme Court or not? I hope to God, God is busier than that.

We keep accommodating insane people. God doesn't talk to these snake oil salesmen disguised as reverends anymore than he talks to the mullahs in the Middle East or the voodoo priestesses in the Caribbean.

The Lord Shiva, the Prophet Muhammad, Apollo and Jesus do not have running commentary on our Supreme Court nominees.

It has been quite a two year run for Harriet Miers. In 2003, she was the President's staff secretary. She corrected grammar, she filed paperwork and she ran a tight office. Now, Reverend Dobson is awaiting word from God Himself about Harriet Frickin' Miers.

The lunatics have taken over the asylum. And we march on as if everything is normal. This is not what America is supposed to be about. We'll find out if our Senators agree soon enough. Let's see what kind of America they believe in.

# posted by David @ Thursday, October 06, 2005 0 comments

WASHINGTON -- The Bush administration's former chief procurement official was indicted Wednesday by a federal grand jury on charges of making false statements and obstructing investigations into high-powered Republican lobbyist Jack Abramoff.

The five felony counts in the indictment charge David H. Safavian with obstructing Senate and executive branch investigations into whether he aided Abramoff in efforts to acquire property controlled by the General Services Administration around the nation's capital.

Both probes looked into an August 2002 golf outing that Safavian took to Scotland with Abramoff, former Christian Coalition executive Ralph Reed, Rep. Bob Ney, R-Ohio, and others.

Safavian, a former lobbying associate of Abramoff, is the first person beyond Abramoff himself to face charges arising out of the probe of the lobbyist, who is a major Republican fundraiser with close ties to GOP leaders in Congress.

The indictment covers May 16, 2002, until January 2004, when Safavian was chief of staff at the General Services Administration, the government housekeeping agency. From November 2004 until late last month when he resigned three days before his arrest, he was the government's top procurement officer, in the Office of Management and Budget.

The indictment said Safavian falsely told a GSA ethics officer, a GSA inspector general's agent and the Senate Indian Affairs Committee that Abramoff had no business with GSA at the time the Scotland trip was being planned. It said Safavian concealed that Abramoff did have business with GSA before the trip and that Safavian was aiding him in dealing with GSA.

Barbara Van Gelder, Safavian's lawyer, said Safavian would plead not guilty. "If this case did not involve Mr. Abramoff, the government would never have indicted Mr. Safavian on these charges," she added. "We believe ... Mr. Safavian will be acquitted of all charges."

Each count carries a potential top penalty of five years in prison and a $250,000 fine.

# posted by David @ Wednesday, October 05, 2005 0 comments

Steve Clemons at The Huffington Post

Judy Miller seems to be engaged either in some kind of perverse self-deception, or she is simply brilliant at manipulating the rest of us. As has been widely reported, she seems to have unnecessarily gone off to jail as she was protecting a source who never wanted protection. . .or she strong-armed a deal with Prosecutor Fitzgerald in which she didn't have to tell anything beyond her interactions with Vice President Cheney's Chief-of-Staff Scooter Libby.

P.S. Oh, she also told the Times that "she was uncertain whether she would write her own account, either in the newspaper or in a book." Two questions: (1) Does she really, really, think anybody will believe that? (2) If she intended to maintain her completely selfless pose a little longer, she simply should have refrained from talking to her friends about her $1.2 million book deal because, as she herself proved last week, people talk.

The New York Times should immediately fire her and discredit her immediately. This whole episode has been as fake and contrived -- and corrupt -- as Stephen Glass, Jayson Blair, and Armstrong Williams.

She is planning to get rich off her shenanigans, which included misreporting about Iraq's weapons of mass destruction and helping to set up an environment conducive to America's invasion of Iraq.

An apologist for Judith Miller -- and someone very close to her legal team -- told me recently that "George Bush did not go to war because of or inspite of Judy Miller's reporting. These soldiers didn't die because of her."

Well, I disagree. Judith Miller helped tip the balance. She carries a significant portion of the blame and bears a burden of responsibility for the deaths of American service men and women as well as tens of thousands of innocent Iraqis.

But what is more disgusting is that she is planning to CASH IN on this war and on her contrived battle that had nothing to do with freedom of the press and the protection of sources.

Judith Miller is a war-profiteer of the grossest kind.

# posted by David @ Wednesday, October 05, 2005 0 comments

At his first press conference in four months, President Bush claimed, “We’re making good progress in Iraq.” What exactly does that mean? How do we define progress? Well, when it comes to understanding how the war is going, it’s all about the numbers. According to the president, we have a “dual track strategy” for success -- one track being the military progress, one track being political progress.

On the military track, the president declared during his Saturday radio address that Iraqi security forces had “more than 100 battalions operating throughout the country”. Sounds impressive. On Tuesday, he told reporters “there are over 80 army battalions fighting alongside coalition troops… There are over 30 Iraqi battalions in the lead”. Okay, less impressive, but still notable.

This morning, after a meeting with Rummy and Generals Pace and Petraeus, he busted out some more numbers, saying “I was also pleased to hear there are 3,000 Iraqi forces” taking part in an offensive in western Iraq, adding “Over 30 percent of the Iraqi troops are in the lead on these offensive operations”. Let’s see, 30 percent of 3,000… Let me get my calculator…

The problem is, just last week, two other Generals, Abizaid and Casey, had told Congress that there was actually just 1 Iraqi battalion able to take on the insurgents on its own. 1. That’s down from the 3 that supposedly had been ready to solo back in July. So, let’s review: when it comes to Iraqi troops standing up so we can stand down, the key number is 100, check that…80, uh, actually 30… I mean, 3. Hold it, no… 1. Apparently, that adds up to “good progress” for President Bush. Do you get the same answer?

A similar new math is being used on the political side of the equation. With the constitutional referendum less than two weeks away, on Sunday the Iraqi National Assembly decided to have some fun with fractions. Since the constitution will be rejected if 2/3 of voters in at least 3 of the country’s 18 provinces vote against it on October 15, the members of the Assembly decided to change the definition of “voter” from, you know, someone who has actually cast a ballot to someone who might possibly, if he -- or she -- wanted to, and could find the time (and the polling place, since those have still not been announced in the volatile Sunni-dominated Anbar province) cast a ballot. This was a change that virtually ensured the constitution would pass. After the Shiite hit the fan and the UN (called in to confer legitimacy on the vote) objected, the Assembly reversed its Sunday skullduggery and today voted 119 to 28 to go back to the boring old definition of “voter”. So now the Sunnis, who make up only 20 percent of the nation’s 27 million people, will gear up to try to defeat the constitution at the polls. “I am sure if there is honesty,” a top Sunni politician said, “95 percent of Sunni Arabs will vote no.” Is this an example of addition by subtraction… or unity through division? Perhaps the White House could use a tutorial.

Of course, the numbers that matter most in Iraq are these: 149,000 U.S. troops still in country at a cost of $5.6 billion a month. 1942 dead Americans. X number of Iraqi dead (the administration has decided to leave that word problem blank). And these numbers: 59% of Americans now think it was a mistake to have sent our troops to Iraq; 63% believe the troops should be partially or completely withdrawn; just 21% believe we will win the war; and just 32% approve of Bush’s handling of Iraq.

# posted by David @ Wednesday, October 05, 2005 0 comments

by curtadams

Tue Oct 4th, 2005 at 22:02:17 PDT

Employees of the National Weather Service, in the process of accurately warning the public about recent hurricanes, have apparently stepped on some toes. Recent weather facts have exposed both Bush's incompetence and Santorum's corruption. As reported by Larisa Alexandrovna of Raw Story NWS employees who wish to talk to the press must now obtain authorization from the Department of Commerce.

• curtadams's diary :: ::
• 
  

Reality has been hard on the Bush administration lately. Part of the slow response from the federal government to Katrina resulted from the Department of Homeland Security and FEMA using different weather services. DHS used a weather service which has made large contributions to Santorum, who in turn introduced a bill to prohibit the National Weather Service from releasing information that is available from private weather companies - which is to say, anything. NWS will still have the privilege of providing these companies with information for free, paid for by taxpayers.

Now the Bush administration has taken a new tactic to reduce the effectiveness of the National Weather Service and reduce the chance that weather facts will refute administration spin or show up private companies (which cannot currently match the NWS' hurricane forecast accuracy)

NWS must obtain approval before they talk to the media. Employees must obtain the following:

-The name of the reporter and their affiliation
-Their deadline and contact phone number
-The name of the individual being requested to give the interview
-The purpose of the interview
-The expertise of the requested interviewee on this subject.

send it to the Department of Commerce, and get approval.

Obviously, this is ludicrous for an agency with such desperately time-sensitive information. The next major weather event - hurricane, blizzard, tornado, you name it - will be a much greater hazard to the public, which will be restricted to the narrow straw of regularly scheduled bulletins. Call CNN to announce a shift in forecast track? Ix-nay! Good luck, suckers.

I guess Bush figures more Democrats live in areas at risk for weather disasters.

# posted by David @ Wednesday, October 05, 2005 0 comments

Last week, an official government investigation determined that the Bush Administration broke the law when it used taxpayer dollars to hire fake journalists like Armstrong Williams to promote its political agenda.

It’s not only unethical, it’s also illegal. The only way for justice to be served is for you and 50,000 others to add your name to a letter I am sending to Congress and the Justice Department demanding prosecution. A copy of your letter will be sent to all the leaders of the Judiciary and Appropriations Committees.

Please put your name next to mine in demanding a full prosecution.

This White House has a knack for evading prosecution. Our strength is in our numbers -- I need you to stand by me and make the charges stick against an administration that has set aside more than a quarter billion dollars to push covert propaganda on the public. No other administration has spent so much to deceive so many.

In a report released on Sept. 30, the Government Accountability Office found that the Department of Education illegally used taxpayer dollars to fund a covert propaganda campaign, funneling money to Williams to tout Bush's education policies in advance of the 2004 elections. The investigation also dug up other instances of abuse, including a previously undisclosed case in which the Bush administration commissioned a newspaper article that praised the White House's role in promoting science education. But these abuses may just be the tip of the iceberg.

We need the White House to provide a full accounting of the more than $250 million in taxpayer funds spent to promote its political agenda.

Tell Congress and Justice to prosecute these crimes to the full extent of the law.

The administration's silence on propaganda speaks volumes. Without popular dissent, an emboldened White House will continue to throw up obstacles to full disclosure. It is now up to the public to pressure our government to enforce the law and stop propaganda crimes.

Take action today -- and don't forget to tell your friends.

Onward,

Robert McChesney
President
Free Press
www.freepress.net

# posted by David @ Wednesday, October 05, 2005 0 comments