Marty Aussenberg – Page 3

Shocked, Again

Guess what? The FTC has given the oil companies a clean bill of health, insofar as price gouging. To quote Claude Rains’ character (Captain Renault’s) famous remark in the film “Casablanca,” I was shocked, shocked that George Bush’s FTC would give the oil industry a pass on the way it’s been screwing the American public. The FTC has succeeded in telling the American public that, when it comes to gasoline pricing, if something looks like gouging, feels like gouging, and acts like gouging, it isn’t gouging.

The FTC, in its report issued on May 22nd, found no anti-competitive, collusive or manipulative activity by the oil companies in the runup of gasoline prices following Hurricanes Katrina and Rita. (The 222 page report is here (.pdf): a summary is here. Of course, this comes from the same agency that allowed the mega mergers in the oil industry which have, themselves, destroyed competition (.pdf) in that industry.

The furor the report caused in the halls of Congress was almost immediate. At a hearing before the Senate Commerce Committee on May 23rd, the incredulity of the Senators, from both parties, was palpable. Trent Lott, who is nothing if not a supply-sider, used words like “baloney” to describe the way oil company representatives were dancing around the issue of refining capacity, and described the oil industry’s actions as “outrageous,” “fishy” and “indefensible.” He suggested that the industry is using the excuse of normal supply-and-demand economic theory “as a cover to defend bad conduct.” Arkansas Senator Pryor pointed to the fact that the oil industry is the only one he could ever recall that had successfully turned the normal economic model (i.e., the higher the cost of raw materials, the lower the profit) on its ear (a point I made in my Gasonomics 101 article), a phenomenon Pryor said could only be explained by “profiteering.” Senator Boxer, in a confrontation with the FTC’s chairman, Deborah Majoras, that was worth the price of admission to the hearing by itself, called the report as good a whitewash as if the oil companies had paid for it, and suggested it was the FTC itself that should be investigated.

A little historical context is appropriate here. In September, 2005, when prices started started their precipitous rise following the hurricanes, Congress summoned representatives of the FTC, including its chair, Ms. Majoras, and insisted that the Commission investigate the oil companies for possible price gouging. At the time, Majoras was quite vocal in her opposition to any sort of regulation of gouging in the oil industry, and was resistant to the mandated investigation. Ms. Majoras, in fact, testified that increasing oil prices were good for the market, because they resulted in increased supply.

Her statement has been proven to be demonstrably false, given the facts which were announced at the recent hearing. And she opposed any attempt to federalize existing laws against gouging, claiming that would be counter-productive, insisting that Congress should allow the “free market” to continue to dictate prices in the gasoline markets.

Here’s what she said:

Price gouging laws that have the effect of controlling prices likely will do consumers more harm than good. While no consumer likes price increases, in fact, price increases lower demand and help make the shortage shorter-lived than it otherwise would have been. In a period of shortage – particularly with a product, like gasoline, that can be sold in many markets around the world – higher prices create incentives for suppliers to send more product into the market, while also creating incentives for consumers to use less of the product. Thus, under these circumstances, sound economic principles and jurisprudence suggest a seller’s independent decision to increase price is – and should be – outside the purview of the law. (Emphasis supplied).

So Congress entrusted the task of investigating the oil companies’ pricing practices to the one person who trumpeted her belief, in advance, that she was an oil company acolyte when it came to price spikes. Talk about putting the fox in charge of the hen house! But none of that was a surprising position for her to take, given the fact that she represented Chevron Texaco as a partner in a major Washington, D.C. law firm (which, presumably, still represents Chevron, and where her husband is still a partner) , and given that she may well like to return to that job (and that client) when her tenure at the FTC is up.

The hearing on May 23rd was nothing if not a dramatic demonstration of how ineffectual the “free market” is in the oil business, and how even more unwilling the Bush administration is to do anything about that. Among the more interesting revelations during the Senate hearing were the following:

1. The FTC restricted its investigation to the downstream flow of the gasoline market (i.e., from the refinery level down to the retail level), and did not look at the upstream impact of oil pricing, even though Majoras acknowledged that most of the oil company’s profits come at the extraction end of the process;

2. Crude oil stocks (i.e., inventory) have increased substantially (10 million barrels) just in the last year, to their highest level ever, which, in a normal (i.e., “free”) market situation, would dictate a decline in price, just the opposite of what has occurred;

3. Majoras, in addition to opposing a federal anti-gouging statute, also opposes making OPEC (which she acknowledged violates anti-trust laws with impunity) subject to the U.S’s anti-trust laws. Why? Because, according to her (and even though they stash billions of dollars in this country which could be subject to seizure in the event of an anti-trust judgment, they would “laugh” at any lawsuit.

But perhaps the most interesting exchange was when Majoras told Boxer that in talking to “working people” about the price of gasoline, they told her that, although they were troubled by increasing gasoline prices and increasing oil company profits, they also recognized that if they sold their homes for a profit, they would never relinquish any part of their profits. So said the Marie Antoinette of federal consumer protection.

Congress is under extreme pressure from its constituents to do something about the oil companies’ business practices. The public record is replete with studies that show the oil industry is raping the American public. Here are just a few examples:

www.lafollette.wisc.edu
www.consumerwatchdog.org
www.citizen.org/
zmagsite.zmag.org
www.consumerwatchdog.org

www.consumerwatchdog.org

Our elected officials in Washington thought (stupidly) they could soothe the savage electorate beast by appearing to aggressively investigate the oil companies’ practices. Unfortunately, they chose the wrong vehicle. They should have known that the FTC would never get to the bottom of the problem, since it never has, especially given the loyalties of its top cop. As a result, the FTC’s “whitewash” (Sen. Boxer’s term) is only going to increase the pressure on Congress to do something about the oil companies.

If gasoline prices continue to stay high (or go up even further), our elected representatives are going to have a hard time not enacting corrective measures on the oil companies. There are already bills pending in Congress to impose an excess profits tax, here and here. and there are also bills pending which would federalize the prohibition against price gouging. that even (but especially) Republican legislators will want to convince voters they’ve actually done something about gas prices, and the practices which have caused them.

BIOGRAPHY:

Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.

Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.

Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.

He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)

Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

Bush’s Enemies List

The question arises: what is the government’s (and, in particular, the Bush administration’s) motivation for its domestic surveillance and recently revealed telephone data gathering programs? Oh sure, they say it’s to catch terrorists (so much for the validity of the “fighting them over there so we won’t have to fight them over here” mantra). But it’s pretty obvious by now that the government hasn’t needed (and doesn’t need) to break the law to catch terrorists. Indeed, the times it’s broken the law, like by using torture on the real perpetrators of 9/11 it has in its custody (e.g., Khalid Sheikh Mohammad it’s tainted its ability to prosecute those perpetrators, thus thoroughly botching its “war on terror.” So, what are they really up to?

As reported by the New York Times several months ago, domestic surveillance has been a bust. In a January article, the Times reported that:

More than a dozen current and former law enforcement and counter-terrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counter-terrorism work they viewed as more productive.

It also reported that the FBI director, Robert Mueller, had concerns about the legal underpinnings of the program, but deferred to the Justice Department’s opinions that it was legal.

So, if all the spooky stuff the NSA is inflicting on us isn’t helping fight the “war on terror,” what’s it doing?
We already know that our government is spying on political groups it finds objectionable (i.e., ones that are against the war in Iraq). The Pentagon has been targeting anti-war groups, including the peace-loving (and therefore subversive) Quakers, for its own surveillance program. And now we’re finding out that the government also has the press under surveillance because, heavens to Betsy, the press is revealing all the ways the government is violating laws, invading our privacy, and subverting our entire constitutional form of government. But that, of course, is also revealing our tactics to the “enemy,” and compromising our national security, to hear Bush and his flacks (including the mainstream media) tell it. Never mind that the real compromise of our national security is precisely the tactics being used by our renegade government. As Frank Rich put it in his recent column:

It’s the recklessness at the top of our government, not the press’s exposure of it, that has truly aided the enemy, put American lives at risk and potentially sabotaged national security. That’s where the buck stops, and if there’s to be a witch hunt for traitors, that’s where it should begin.

The pattern is pretty clear, isn’t it? This isn’t about fighting terror. It’s about fighting a different enemy: dissent. War is good, for some folks. This one’s been good for the military/industrial complex. Exxon has made a killing (excuse the expression), as has Haliburton (and, in the process, its prodigal son, Dick Cheney. So, anyone who threatens the welfare the war represents must be stopped. Under that theory, everyone (or at least the 2/3 of the American populace who oppose the war) is potentially an enemy of this administration, and therefore many millions of us are suspected of being terrorists (or terrorist sympathizers), thus justifying spying on and collecting private data on that many Americans. This was precisely the MO of the Nixon administration, which had a more or less formal “enemies list.” But even Nixon, at the height of his schizoid paranoia, didn’t have tens of millions of people on his list. It did, however, include two of the biggies on Bush’s list: the New York Times and the Washington Post. Ah yes…the more things change, the more they remain the same.

Ask yourself, logically speaking, whether the government really needs to track the phone records of countless millions of people to find what is, at most, a few hundred “terrorists.” Back in 2003, the FBI director told Congress that’s how many al Qaeda-affiliated terrorists were in the U.S. So even if, contrary to what our government would have you believe, the war in Iraq has increased the number of terrorists and terrorist-related incidents in the world , how many al Qaeda members could there possibly be in this country by now? 1,000? 1,500? In any event, a lot fewer than there are Quakers. And the government really expects to find these 1,500 by getting copies of yours and my phone records?

Finding “terrorists” is no different than finding any criminal who does’t want to be found. When the police want to find a murderer, do they spread a dragnet over the whole city and go knocking on every citizen’s door to see whether he might be hiding there? Let’s not forget, this is the same NSA that intercepted the al Qaeda message on 9/10 saying “tomorrow is zero hour,” but didn’t translate the message until 9/12. Should anyone really want this gang that can’t shoot straight rooting through their phone records to find a few dozen terrorists who, if they haven’t stopped using telecommunications of any kind to talk to one another by now, are obviously too stupid to have pulled off 9/11.

So, are these snoopy techniques really part of the “global war on terror,” or is the GWT a pretext for something else? Does anyone even still believe that the war in Iraq is part of a “global war on terror?” Even Bush stopped believing that when he tried to rename it (the global war, not Iraq) awhile back. Remember when he and his flacks started calling it the “global struggle” against, at first, the enemies of freedom, and then, violent extremism? And even though they (e.g., Rummy, Gen. Pace, etc.) couldn’t carry off this revised marketing campaign with a straight face, as a result of which it died a natural death, at least it told us that what the war is really about is not about finding terrorists, it’s about finding (with a tip of the hat to old Tricky Dick himself), enemies. And who could qualify more for that appellation than anyone who opposes George Bush?

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

Gasonomics 101

Those of you who are in a business where a substantial portion of your cost is the raw material you use or convert into a finished product will recognize the concept I’m about to run by you. It’s an elementary principle, Economics 101 if you will, that, all other things (i.e., occupancy and personnel expense) being equal, when the price of your raw material increases, your profit decreases. So, if you’re a shoe maker and the price of leather goes up, that cuts into your profit. Same for a furniture maker with the price of wood, a baker with the price of flour, a newspaper with the price of ink or newsprint, and so on.

But, when you’re an oil company, the ordinary laws of economics don’t apply, see, because you’ve figured out a way to turn that economic principle on its head: when the cost of your major raw material (oil) goes up, so does your profit. In fact, the more the cost of oil goes up, the more money you make. There are a lot of shoemakers and bakers out there who would like to know your secret. But, in fact, it’s not that complicated. In order to compensate for the increased cost of a raw material, all you have to do is increase the price you charge your customer. In fact, we’ve seen many companies do that as a result of the increased price of fuel (e.g., airlines and trucking companies), both of which have started tacking “surcharges” onto the bills for their services. But, as the economic travails of the airlines indicates, they haven’t figured out how to actually increase their profits as a result of increased fuel costs, much less avoid the imminence of bankruptcy.

No, only the oil companies have figured out the secret of making more money as the cost of your raw material goes up. It does’t hurt, of course, that oil companies, unlike the baker or shoemaker, control the product they sell from its raw to its finished state. Not too many businesses can say that. And, of course, many businesses that are hit by increases in their cost of goods sold recognize they can’t increase their prices, dollar for dollar, to their customers who won’t put up with that because, in a normal market environment, if one supplier increases its prices to compensate for increased costs, they risk losing customers to competitors who choose to absorb some, or all, of that increased cost in order to maintain those customers. Oil companies, of course, don’t have to worry about that because, no matter how much they increase what they charge us for gasoline, we’ll continue to buy it because we don’t have a choice, since there is no competition between oil companies when it comes to the price at which they sell us their precious commodity. Can you say “monopoly?”

Now the government, the oil companies, the politicians and the corporate media would have you believe the current spike in gas prices is entirely a function of “the market.” They’re not to blame; it’s all a matter of supply and demand. It’s the Chinese, the Indians, and ethanol’s fault. And, of course, it’s our fault as consumers: if we just used less gasoline, the price would go down (like less sales is what anyone who’s in the sales business wants to promote). The oil companies are innocent, they tell us. Price manipulation or collusion? Gouging? Perish the thought. So, how do they do it?

Historically, no matter how much the price of oil goes up, the price of gasoline goes up more, and sometimes substantially more. That shouldn’t surprise anyone, given the record profits oil companies are reporting in an increasing oil price environment. And thanks to this topsy-turvy economic model, oil company executives enjoy some of the highest annual compensation packages in the universe (not to mention the generous retirement package given to Exxon’s CEO, the cost of which exceeds the gross national product of many countries).

A recent study (.pdf) by a consumer watchdog group is very instructive on this score.

In that study, The Foundation for Taxpayer and Consumer Rights, a California consumer protection group (and remember, Californians know all about how energy vendors can rip you off—they learned that lesson the hard way, a multi-billion dollar ripoff at the hands of Enron), found that 70% of the recent price spike is attributable to the oil companies increasing their refinery and marketing profit margins. They found that, contrary to the oil companies’ talking points (which virtually every story about gas prices on TV or in the newspapers mimics, sometimes verbatim), oil companies are insulated from the fluctuations in the spot market by long term contracts, and by harvesting their own oil. As a result, they’ve been able to increase their profit margins by spiking the price of gasoline even more than most people realize, because everyone assumes their cost is based on the spot market price of oil. The report also goes on to debunk the “ethanol is the culprit” argument. The FTCR finds that: “Oil companies are opportunistically using the rising world price for crude oil as an excuse to excessively raise gasoline prices and pump up their profits, even though the spot market price for crude has gone up far more slowly than gasoline prices.”

So, what’s our government doing (or going to do) about this? Up until now, the federal government has been the major enabler of oil company profiteering. We already know about the influence of the oil companies on the oil patch duo (Bush and Cheney), and energy legislation that’s resulted in billions of dollars in giveaways to the oil industry. My favorite partnership between the government and the oil companies is the Energy Department which publishes periodic reports on energy prices, and has been doing so since the first oil crisis in the ’70’s, in which, among other things, it predicts what the price of gasoline is going to be, for example, next week. And guess what—in an increasing price environment, like we’re in now, that prediction almost always comes true. How’s that for cooperation between government and industry?

Now, if you’re one of those poor saps running a business and haven’t figured out how to increase (much less maintain) your profit when your costs go up, I guess the only thing for you to do is sell your business and buy an oil company.

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

[UPDATED] What They Knew…

It now seems beyond question that, at the very least, Karl Rove will be indicted for perjury, false statements and/or obstruction of justice in what’s come to be known as “Plamegate” (the outing of a CIA agent to extract revenge against her husband, Ambassador Wilson, for challenging the President’s assertion that Saddam was buying nuclear materials from Africa). The corporate media and the blogosphere is abuzz, speculating on the timing of Rove’s indictment, and laying the foundation for such an indictment.

I have been on record for some time as being convinced that the real crime involved in Plamegate isn’t lying about it (though that, of course, is a crime), but the revelation of Valerie Plame’s identity itself. For several months the pundits have been pooh-poohing the entire investigation, suggesting that since no crime was committed by outing Plame’s identity, no foul was committed either, and that it’s a feeble fallback on Patrick Fitzgerald’s part to go after people for lying about something that wasn’t a crime in the first place.

We now know, however, thanks to the reporting of David Shuster on MSNBC, not only that Plame was a covert operative, but that she was working on issues involving Iran’s nuclear weapons program. , a fact to which even the somnolent Congress has awakened, with Senator Frank Lautenberg requesting a damage assessment from the CIA regarding the effect of the Plame outing on our Iran-related intelligence efforts. Fitzgerald, you may recall, was particularly outspoken at the press conference where he announced the Libby indictment about the damage to national security inflicted by the leak. He said:

The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It’s important that a CIA officer’s identity be protected, that it be protected not just for the officer, but for the nation’s security.

The Libby indictment (.pdf) makes it clear that Cheney told Libby about Plame’s status at the CIA. Paragraph 9 of the indictment says:

Libby was advised by the Vice President of the United States that Wilson’s wife worked at the Central Intelligence Agency in the Counterproliferation Division. Libby understood that the Vice President had learned this information from the CIA.

And, as I said in one of my earlier stories:

Anyone with knowledge of the CIA’s organizational chart (but particularly Cheney and Libby) knows that the Counterproliferation Division is part of the CIA’s Directorate of Operations (i.e., where the spooks are), and not where the more benign employees (e.g., analysts) are assigned.

That view was confirmed by a former CIA operative during the course of the David Shuster report on Plame’s Iran-related duties.

We also know that the original outing of Plame’s identity, at the hands of Robert Novak, followed his (Novak’s) conversation with a CIA official who warned him not to reveal Plame’s identity. We also know that Novak was warned not to reveal Plame’s identity by another CIA operative, who told him (Novak) that Plame was a specialist in weapons of mass destruction at the CIA. And, we know from the Libby indictment (Paragraph 11) that he discussed Plame directly with a “CIA briefer.”

Given the fact that Cheney learned of Plame’s identity (and role) from the CIA, and that both of them were well aware of the sensitive nature of Plame’s role at the CIA, is there really any doubt that either or both of them knew she was covered by the Intelligence Identities Protection Act? When you work at the CIA, you’re either an undercover agent, or you’re not, and anyone who knows anything about that entity’s organization structure knows that the division Plame worked in was an undercover operation. If that isn’t enough, there is no doubt that every contact between Libby, Cheney and the CIA (and between Novak and the CIA) about Plame included a warning, explicit or implicit, that Plame was a covert agent. So, Cheney and Libby either knew Plame was undercover, or they should have (i.e., they are chargeable with that knowledge). There is no “oops, I didn’t know she was undercover” defense available here.

I remain convinced that Fitzgerald, who has, by now, spoken with whomever it was at the CIA that told Cheney about Plame (and her role), has got the goods on Cheney, and on Libby, with regard to the underlying crime. It still remains open to him, and to the grand jury, to seek a superceding indictment of Libby, and to indict Cheney, who, unlike the President, does’t enjoy immunity from criminal prosecution. I think the reason he hasn’t indicted Cheney, or superceded the original Libby indictment is because he’s using the Libby indictment as a crow bar to get additional damaging information, and because he’s using that indictment to get Libby to turn on Cheney and others (which he—Libby—already has started doing in some of the filings his legal team has made in the document-discovery-related controversies in the case, most notably the one where he reveals that the President, through Cheney, authorized him to reveal classified intelligence to debunk Ambassador Wilson’s attack).

You may recall Fitzgerald’s explanation for why he couldn’t indict anyone for the underlying crime when he announced the Libby indictment:

And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure what happened and somebody blocked their view.

I think the umpire has finally cleared the sand from his eyes, and is about to call the pitch as he now clearly sees it, and at least two batters are about to be called out on strikes.

Update [2006-5-6 6:30:44 by BooMan]:Update: In a report on MSNBC’s “Hardball” Friday evening (aired after my original post), reporter David Shuster commented on courtroom proceedings in the Libby case today (described, procedurally, at firedoglake), saying it was revealed by defense attorneys that Libby may have been warned by the CIA not to reveal the identity of Valerie Plame (as, noted in my earlier piece, were other recipients of the Plame information from the CIA), and that, while the warning came after one of his first conversations with Judith Miller of the New York Times, it also came before one of Libby’s later conversations with Miller, and before his conversation with Matt Cooper of Time Magazine.

Shuster notes (a full transcript won’t be available until Monday):

“It could also signal how close prosecutors may have been to charging Scooter Libby with the actual leak if, in fact, they had this evidence that Libby knew she [Plame] was classified and then went ahead and told reporters about it anyway. That brings the case much closer to a decision from prosecutors about, well, maybe we should indict Scooter Libby for the actual leak as opposed to the perjury and obstruction of justice.” (emphasis mine)

Thanks for that, David. I couldn’t have said it better myself. It also highlights the likelihood that Cheney (Libby’s first source for the Plame information) was also warned by his CIA source not to disclose Plame’s status as an agent. Judging from Shuster’s report, I think he was focusing on the considerations, as a historical matter, that went into the original Libby indictment, and not on the possibility that Libby might still be indicted for the underlying disclosure.

Neither Shuster (nor any other commentators I’ve seen) has focused on this possibility, but as I noted when the Libby indictment was announced:

[T]he fact that Libby wasn’t indicted for any of the possible classified-information-related offenses doesn’t mean he still can’t be, since the special prosecutor has the prerogative of getting a superseding indictment from the grand jury which is to follow (not unlike what the prosecutor in Texas did in Tom Delay’s case). Thus, Libby is still, technically under the gun, and the indictment itself is rife with indications that there is another shoe yet to drop, something Fitz also strongly foreshadowed in his responses to reporters’ questions during his press conference. And, of course, neither Rove nor any of a variety of other characters whose participation was described in shadowy terms are, as yet, off the hook.

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

[cross-posted at Memphis Flyer]

An Uncivil War

Civil War? What civil war?

In a page taken from the Clinton “it depends on what the meaning of ‘is’ is,” the powers that be in the Bush Administration are bending over backwards to deny that the sectarian violence which has been racking Iraq for months, suddenly ratcheting up in recent weeks with the bombing of a mosque in Samarra, and hundreds of Iraqis turning up dead in execution-style killings , constitutes a civil war. Dick Cheney, Donald Rumsfeld and their military minions have all denied the existence of a civil war. Remember what they say about not believing something until it’s officially denied?

However, most of the people either “on the ground,” or with their ears to it, seem to disagree. Ayad Allawi, the U.S.’s hand-picked interim prime minister of Iraq, has been quoted as saying the country is in the midst of a civil war. The New York Times’ bureau chief in Baghdad, John Burns, has said the country has been in a civil war for some time. The prominent (and militarily well-connected) Democrat, John Murtha, has said the same thing, as has at least one outspoken Republican war veteran, Chuck Hagel, the Republican senator from Nebraska, who said the following:

The former prime minister [Allawi] is correct. I think we have had a low-grade civil war going on in Iraq, certainly the last six months, maybe the last year. Our own generals have told me that privately. So that’s a fact.
via Raw Story

I agree that there is not a civil war in Iraq, since there is nothing civil about the conflict between the Shi’ite and Sunnis that is killing, according to Allawi, 50 to 60 people every day, and well over 1,000 so far. All this denial and avoidance by the administration made me think the only thing Rummy and Co. would recognize as a civil war in Iraq was if the factions came out one day dressed in the costumes so popular with re-enactors of the American civil war, the Sunnis in Blue and the Shiites in Grey.

But then Rumsfeld appeared to debunk that notion when he said (about a civil war in Iraq), “I don’t think it’ll look like the United States’ civil war.” . His statement, hedging as it did about his uncertainty that the combatants in an Iraqi civil war might look like the ones at Gettysburg or Shiloh, reinforces my belief that’s exactly what it will take for the likes of Rummy to admit the existence of a civil war in Iraq.

No one questions that the conflicts involving the Serbs and Croats in Bosnia, the Hutus and Tutsis in Rwanda, the Christians and Muslims in Lebanon, or for that matter, the war between the North and South Vietnamese, were all civil wars. They all had common elements, whether conflicting political ideologies, ethnicity, religious beliefs, or claims to territory or governance, which are also present in the Iraqi civil war, and they all involved the killings of and by fellow countrymen. The other common element? To one degree or another, most foreign civil wars have been either the cause or effect of American meddling.

So what’s the problem with admitting Iraq has fallen into a state of civil war? Well, it’s the same reason the administration has difficulty admitting that the presence of American troops not only has failed to stem the tide of terror, but has actually increased and served as a spawning ground for it. If our war president and his stooges can successfully deny the existence of a civil war, he can avoid taking any responsibility for it (an evasion he has raised to a high art). But more importantly, once it is generally accepted that Iraq has degenerated into a state of civil war, any remaining rationale for a continued American presence evaporates, as does what little public support remains for that intervention. It’s one thing to build a nation; it’s quite another to have to dodge IED’s, RPG’s and bullets just to preside over its self destruction.

It’s That Time Again

Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) Cross-posted at The Memphis Flyer.

Loathe as I am to make predictions about almost anything, having missed every prediction I’ve made in the last year, from my homies, the Pittsburgh Steelers’, victory in the Super Bowl to the price of a gallon of gas, I am also a big believer in that old saw about the past being prologue. So it is with some fear and trepidation that I make the following prediction: there will be a terrorist attack, or at least dire warnings about one, in this country, sometime within the next several months (and certainly before the November ’06 mid-term elections).

The circumstances are ripe either for another terrorist attack or for the removal of the cobwebs from the terrorist warning system (Dept. Homeland Security). No, it’s not because our preparedness for an attack is non-existent, because security at our ports (both sea and air) has been shown to be about as tight as a sieve, because FEMA has been shown to be utterly incompetent, or even because our National Guard, which would have to respond in the event of a domestic terrorist attack, has been decimated by its repeated deployment to Iraq (Wash Post). It’s because the political climate dictates a return to a tactic that’s been successful for this administration in the past.

With the president at an all-time low in popularity, and an all-time high in disapproval (Polling Report) the Republican party in a shambles (thanks, in part to the Dubai ports debacle), and the country starting to believe that Democrats are more worthy of confidence on the Republicans’ go-to issue of national security, (ABC News) there is only one thing that will save the President, and his party: a terrorist attack, or at least sounding the alarm bells that one is imminent.

It’s no secret that the terrorist alert/warning system has been manipulated to benefit the popularity rating of the administration. (Info Clearing House)

In a well-documented study of the confluence of political conditions and the issuance of terrorist warnings, entitled “The Nexus of Politics and Terror,” Keith Olberman, the articulate host of the MSNBC show “Countdown,” revealed on the show, and in a posting on his blog that on at least 13 occasions, the issuance of terrorist “alerts,” had coincided with events he called “political downturns” for the Bush administration. He summarizes the findings by saying:

But, if merely a reasonable case can be made that any of these juxtapositions of events are more than just coincidences, it underscores the need for questions to be asked in this country – questions about what is prudence, and what is fear-mongering; questions about which is the threat of death by terror, and which is the terror of threat.

Let’s not forget the effect the Bin Laden tape that was revealed (again, no doubt fortuitously) just before the 2004 presidential election had on the outcome of that election. Even President Bush has acknowledged that probability.

It continues to amaze me that, despite the overwhelming evidence of this administration’s incompetence in the “war on terror,” the country has, at least until recently, continued to believe that Bush is their man when it comes to protecting them from a terrorist attack. I commented about this in an earlier piece entitled Who You Gonna Call, in which I said:

But how stupid do you have to be to believe that a man who’s demonstrably incapable of prosecuting a successful campaign to bring down (“dead or alive”) our avowed “Public Enemy Number One,” [Bin Laden] is the man for the job, or worse, that even if we’re attacked again, he still deserves to be considered our protector. How many more times do we really need to be fooled?

And so, with the prospect that the Republicans will be brought down in the upcoming elections by their, and their leader’s, tanking popularity ratings, the imminence of additional disclosures of ethical scandals in the Congressional (read: Republican) bribery (read: Abramoff) investigations, the likelihood that Patrick Fitzgerald will bring his other shoe down, hard, on Karl Rove in the continuing “Plamegate” investigation, and the general implosion by spontaneous political combustion of the Republican party as we know it, the harbingers are clear. The only thing that may save Bush and his party is their time-tested go-to tactic: be afraid, be very afraid.

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

Don’t Ask for Something…

The latest gift Republicans have given Democrats in this, an election year, is the Senate Intelligence Committee’s refusal to initiate an investigation of the secret, warrantless NSA spying fiasco. I say “gift” because, in spite of their fecklessness in standing up to Republican domination of all three branches of government, the fact is the GOP is playing right into the Democrats’ hands (if only that were truly the Democrats’ tactic). On issue after issue, from the “Phase II” investigation of the intelligence failures leading up to the war in Iraq (which Pat Roberts, the chair of the intelligence committee has been promising for nearly two years, per Raw Story) to investigations of Abu Ghraib, secret prisons, torture, Katrina, congressional ethics, oil company gouging, etc., the Republicans, including the president, have stonewalled and obstructed, because, quite simply, they can.

But the Democrats need to be careful not to bray too loudly about the Republicans’ cover-ups (e.g., Glenn Greenwald) lest the party in power take their protestations seriously, and actually appear to do something of an investigative nature with regard to so many of their, and their fearless leaders’, screw-ups. The Dem’s are far better off, politically, with a party that refuses to hold anyone accountable for the vast and far-reaching excesses and serial incompetence of the government they control than they would be with sham investigations which would end up being nothing more than window dressing anyway. What use would another Republican-led congressional “investigation” be, given that party’s reluctance to swear witnesses who testify before it, or to issue subpoenas to recalcitrant administration minions, as has been the case with so many prior investigations, and given the Democrats’ status as eunuchs on any investigating committee anyway. The failure to investigate, however, gives Democrats a powerful stump theme, both in the upcoming mid-term elections and in the ’08 presidential contest. Not only, they can say, are the Republicans responsible for a “culture of corruption,” they are also responsible for a culture of deceit and obfuscation.

The reality is that with the hegemony enjoyed by the Republicans, nothing meaningful would be likely to come of any investigations anyway. The only time congressional investigations have meant anything was when the parties shared power. The prime example of that, of course, is during Watergate, when the investigation that revealed so many crucial facts about the Nixon White House came as a result of the Democrats’ control of Congress. That and the fact that there were Republicans who were willing to jump on the “get Nixon” bandwagon (a “do-right” philosophy that is completely absent from the current crop of kowtowing Republicans), resulted in an investigation that actually accomplished something (most notably, the revelation of the Nixon tapes). The Democrats should hope that the Dubai ports deal doesn’t completely wake the Republicans from their robotic obeisance to their leader, or at least that it doesn’t translate into party defections on other issues (as it seems unlikely to, given the party line vote on the NSA investigation question).

The Democrats need to keep their powder dry for when it will count—the upcoming elections. In the meantime, and as I’ve predicted before, (Memphis Flyer) the only meaningful accountability this administration is likely to suffer will be at the hands of the federal judiciary which, as we speak, is handling lawsuits covering virtually every Bush/Republican excess, from the NSA debacle, (ACLU ), to prisoner abuse/torture, (ACLU) to Katrina (USA Today). I’m still holding out hope that Henry Whittington will realize he’s a lawyer, not a priest, and change his apology for getting in the way of Cheney’s shotgun into a big fat personal injury suit, since that too is the only way we’ll ever find out what really happened that fateful day on the real-life Ponderosa.

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

Assuming Risk

The man the Vice President shot last week said, during his remarks to the press upon leaving the hospital, that “we all assume some risk in what we do, no matter how careful we are,” the implication being that by going hunting he was assuming the risk that he would be shot by a fellow hunter. I understand the need for this die-hard Republican to be obsequious in the face (excuse the expression) of Cheney’s assault, but what I don’t understand is his utter mischaracterization, especially given his training as a lawyer, of a long-standing legal doctrine to justify that kind of brown-nosing.

The doctrine known as “assumption of the risk,” is a legal construct, established in the common (i.e.., court-made) law which says, in essence, that someone who is injured in an activity that is inherently dangerous can’t claim damages from being injured during that activity. So, for example, if you’re beaned by a foul ball that hits you while you’re a spectator at a baseball game, you’re SOL (another legal construct, loosely translated as “sadly out of luck”) as far as being able to sue anyone for your injuries. Similarly, if you’ve served honorably in the armed forces and decide to run for public office against a Republican opponent, you’re not going to be able to complain when s/he questions your service and suggests you were actually a coward, because being “Swift-boated” is just a risk you assume when you take on a Republican opponent.

There are many other things we do where we assume the risk of something bad happening. … continued below …

Running with the bulls in Pamplona, riding one of those “crotch rocket” motorcycles down a city street at 100 plus miles per hour, and jumping out of an airplane from 20,000 feet with nothing more than a few yards of silk to slow your fall all come immediately to mind. But there are some consequences of potentially risky activities we all undertake which we definitely do not assume the risk of. Food preparation, electricity and driving all involve elements of risk, but none of us assumes the risk of contracting salmonella from eating in a restaurant, being electrocuted by our computers or being run into by an 18-wheeler on the road. When any of those things happen, it’s not because of a risk we assumed, it’s because someone screwed up royally, which is what Mr. Cheney did when he shot Mr. Whittington.

In bending over backwards (or maybe forward) to kowtow to the Vice President, Mr. Whittington would have us believe that hunters assume the risk of being shot. Yes, hunting entails a certain amount of danger, if for no other reason than that lethal weapons are involved, but a steak knife is a lethal weapon, yet no one assumes the risk that they’ll be stabbed by one while having a steak dinner with friends. The worst a hunter anticipates is wetting himself because the zipper on his hunting garment jammed at an inopportune moment.

Strangely enough, statistics show that fewer people are injured in hunting accidents than in dozens of other activities, from taking a bath to playing golf. Now maybe it’s a different matter if one of your hunting companions is taking a potent mix of pharmaceuticals to keep his heart from stopping, has a history of alcohol abuse, and is willing to admit he only had “a beer” shortly before he slung his shotgun over his shoulder. If being shot while hunting were as risky as Mr. Whittington would have us believe, then hunting attire would be made with kevlar (which it isn’t), and hunters wouldn’t be able to get life insurance (which they can). No, the only risk Mr. Whittington assumed by hunting with Dick Cheney was that if he was shot, someone would try to blame him for it.

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

Who You Gonna Call?

Imagine this: a
snake crawls into your house in the middle of the night and bites your child,
injuring her seriously. What do you do about it (the snake, that is)? You call a

snake exterminator, right? He
tells you he’s going to get the snake, “dead or alive,” and as he goes into your
basement in pursuit of the snake, you even hear him taunting the snake with the
words, “bring it on.” You pay him a lot of money, and you feel good about the
prospect that he’ll eliminate the problem. Then, a month later, the snake is
back, but this time he bites one of your friends’ children. Your confidence in
the exterminator is shaken (wouldn’t it be?), and you even think about calling a
different snake expert, but you call the same one (after all, he’s told you he’s
a man of faith), and he charges you more money to go after the snake again
(there’s no money-back guarantee with snakes, he tells you). A month later,
guess what—that’s right, the snake shows up in your kitchen, and scares the
holy you-know-what out of you.

Now the question
is, do you still feel the exterminator is worthy of your confidence, and second,
are you going to trust him to go after the snake the third time, having already
violated your belief in the old “fool me once, fool me twice” bromide. The
answer to both questions should be obvious. …
Not only are you going to feel like
the exterminator was incompetent, you might even feel like he bamboozled you. In
any event, you’re certainly not going to make the mistake of relying on him
again. You might even sue him for snake malpractice, or try to get his
exterminators’ license revoked.

And yet, when the
snake is named Osama

bin Laden, and the exterminator is named George Bush, for some stupefying reason
I have yet to fathom, our elected snake buster still inspires public confidence
in his ability to accomplish the mission. Even though this particular snake has
only struck in our house once, he’s struck our friends, we know he’s capable of
striking us again, and based on

his latest media performance,
we know he’s planning on it. And yet, after more than four years, and many
billions of dollars fighting a war on a tactic for which bin Laden is,
literally, the

poster child, polls continue
to show that Americans trust Bush on issues of national security. Remember, this
is the same President who acknowledged, a year after 9/11 (i.e., in the
“post-9/11 world”) that he was
not all that concerned about bin Laden

or his whereabouts.

The Republicans are
so confident in their strength on this issue, they’ve even trotted out
“typhoid
Karl,” to speak to his
party’s faithful about hammering on this issue in the coming election campaign.
Astonishingly, the conventional wisdom is that if there were to be another
terrorist attack in this country, it would end up benefiting this administration
in opinion polls, and Republicans at the election polls, something “Bush’s
Brain” is relying on. This in spite of this administration’s demonstrated
incompetence, on any objective basis (wouldn’t bin
Laden’s
nose-thumbing audio tape be evidence of that?), when it comes to effectiveness
in its “war on terror.” It is beyond challenge at this point that our
President’s misbegotten policies in his war have actually resulted in the
proliferation of terrorists and of their activities. The war in Iraq has
increased the number of terrorists, and has

served as a training/recruiting ground for terrorists,
worldwide. And most tellingly, available studies show that

the incidence of terrorism has dramatically increased,
51% in just the last year, and a whopping 250% during the five years of our
current commandant in the “war on terror.”
Heckuva
job, Georgie.

And where are the
Democrats, the party of the only true, effective war presidents of this century
(e.g., Wilson, Roosevelt, Truman)? AWOL. Mostly running and hiding, afraid of
their shadows, or worse, trying to out-Republican the Republicans.

My contempt for the
intelligence of the American public (shared with
H.L.
Mencken) is well documented in some of my

earlier pieces. But how
stupid do you have to be to believe that a man who’s demonstrably incapable of
prosecuting a successful campaign to bring down (“dead or alive”) our avowed
“Public Enemy Number One,” is the man for the job, or worse, that even if we’re
attacked again, he’s still deserves to be considered our protector. How many
more times do we really need to be fooled?

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

The Raving-Maniac Phenomenon

Seldom does a week go by when the likes of a Bill O‘Reilly, Rush Limbaugh, Pat Robertson, Ann Coulter or others of their ilk don‘t make some idiotic, antisocial or otherwise sociopathic public statement over the airwaves. That‘s what their constituents expect; it‘s what they tune in for, and what these hucksters of sensationalism are more than willing to give them to keep them listening/watching. But why, oh why, must there always be a response, not only from the blogosphere, but from the MSM as well, and why must we elevate the worthless claptrap purveyed by these shlockmeisters to the realm of being discussed, much less debated. … continued below …

Whether it‘s the manufactured “War on Christmas,” the invitation to Al Qaeda to bomb San Francisco or, in Robertson‘s case, the curse called down on an entire community because of its stand against Intelligent Design, the asininity of the statements by this group of out-there commentators is self evident. So why does the blogosphere go ballistic on these idiots every time they make one of their bizarre pronouncements, and why does the MSM pay them any attention when doing so only multiplies the impact of statements that so richly deserve to be consigned to oblivion? One site, Media Matters for America, has made a career of contradicting virtually every syllable that comes out of O‘Reilly‘s mouth, as though anything the man says should really be listened to, much less debunked. Some bunk just doesn‘t need to be debunked.

On any given day, in any major city in this country, it isn‘t difficult to find some poor misbegotten soul ranting on some street corner, be it about the second coming of Jesus, the imminent end of the world, alien abductions or an occasionally more believable subject. “Speaker‘s Corner”in London‘s Hyde Park actually sets aside a space for these oratorical bloviators. But no one sees fit to dignify these harangues by responding to them, or even by paying any attention to them.
Are the likes of O‘Reilly or Limbaugh worthy of any more credence than these lunatics? So what if they have audiences that number in the millions? They‘ve already been turned into irretrievable mental zombies by O‘Reilly and his ilk, to whom such things as either facts or logic are utterly irrelevant. If what H.L Mencken once said (“no one ever went broke underestimating the intelligence of the American public”) is true (surely our last two national elections proved that), it‘s time we stopped resisting the fact that there will always be people in this country who will be credulous enough to believe people like Bill O‘Reilly.

BIOGRAPHY:

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.