Marty Aussenberg – Page 4

WHERE BUSH WILL BE JUDGED

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.

As the tooth-gnashing in the halls of Congress continues over the revelation that the Bush administration violated the black letter prohibition of engaging in warrantless surveillance, the final word in this debacle will obviously be issued, as it always is in Constitutional crises, by the judicial system. The political process will wind its painfully slow way towards the revelation of the truth about this breach of the law, with hearings that will be hamstrung by partisan bickering, posturing for the C-Span and nightly news show cameras and chest thumping by the usual apologists for an administration run amok.

The party in power cannot be expected, in spite of the courage of some of its members, notably Arlen Specter, (WaPo) to show the political will to hold the president accountable for his unlawful conduct. If it had that will, it would call for a special counsel to investigate the president’s secret program. (ACLU IMAGE). In the meantime, the truth will come out in the marble-lined federal courtrooms of our country, beginning with the one occupied by the court which was legislatively delegated the duty of overseeing the process of approving surveillance activities.

The FISA court has already been wracked by the scandal, with the resignation of one of its judges in protest over the revelations that its authority was disregarded with impunity. That court has scheduled a session at which it will be briefed by the administration about the whys and wherefores of its extra-judicial activities. (WaPo) The judges of the FISA court will want to know whether any of the warrants it did approve were tainted by the administration’s program of end-around surveillance, but also why the administration thought it could ignore the court and the law which created it.

Continued below:

Remember that, constitutionally, presidents only serve four year terms, but federal judges are appointed for life. In the battle of tenure, the judges win, hands down, and it is precisely because of the independence that gives them that they feel comfortable taking on the occasionally power hungry executive branch of our government. If it’s “not nice to fool Mother Nature,” LINK, believe me, it’s a lot less nice to try to fool a federal judge.

If the government cannot convince the FISA court that it had the authority to go around it, or worse, that it didn’t base any of its warrant requests on evidence tainted by warrantless surveillance, the administration faces the daunting prospect of having sanctions imposed on it by the court, including referrals to the Justice Department’s Office of Professional Responsibility (that department’s internal ethics monitor), contempt citations against the individual members of the executive branch and of the justice department who abused their authority, and even criminal charges, including perjury, for executing false affidavits required for the issuance of those tainted warrants.

The Court has already shown a lack of tolerance for government shenanigans when it severely criticized the FBI for filing misleading FISA applications in 75 cases in a case reported in 2002. (Fas.org) And, as has already been foreshadowed, other courts will be asked to perform inquiries into the use of tainted evidence (NYT) from warrantless surveillance by defendants in a whole host of prosecutions, which may result in some being abandoned and even in convictions being overturned.

It is well to remember that previous abuses by presidential administrations were first brought to light, or at least their discovery facilitated, by the judicial process. Nixon’s downfall was catalyzed by the decisions of a courageous federal judge, “Maximum John” Sirica (WaPo), who rejected Nixon’s assertion that “executive privilege” immunized him from having to comply with a federal grand jury subpoena, a decision that was ultimately upheld by the Supreme Court (FindLaw)/ And of course, had it not been for the Supreme Court’s decision in Jones v. Clinton which allowed Paula Jones’ suit against the President to proceed, Clinton might not have ever had to deal with the meaning of the word “is.”

One of the most significant constitutional confrontations in history between the legislative and executive branches of government, and in many ways the spitting image of the one fomented by the current administration, occurred in 1952, when President Truman sought to nationalize the steel industry during the Korean War, claiming he had the “inherent” authority to do so as president and commander in chief, in what was an end-around the Taft-Hartley Act, Congress’ prescribed manner for resolving labor disputes. Congress had explicitly rejected a seizure provision when it considered that law (just as the current Congress rejected including domestic surveillance when it considered giving Bush the authority to use force against al Qaeda (WaPo). The Supreme Court disagreed with Truman, and in a strongly worded concurring opinion, Justice Robert Jackson uttered these now-prophetic words:

[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. [emphasis supplied]

Responding to the argument, similar to the one Bush makes (the “war on terrorism”), that Truman’s actions were in reaction to exigent circumstances (i.e., the Korean war), Justice Jackson dismissed that argument as follows:

[t]he opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies-such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic. [emphasis supplied]

So, let the games in the halls of Congress begin, but in the meantime, keep your eye on the halls of the federal judiciary, because that’s where the issue of the effect of and responsibility for extra-judicial, warrantless surveillance by Bush and his cronies will be decided first.

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.

THE POISONOUS TREE: WILL WE KNOW, OR WILL WE CARE

In the wake of the though-provoking piece in yesterday’s New York Times, and two excellent pieces providing further analysis, SusanHu’s and ReddHedd’s, the question becomes, so what if Bush’s violations of FISA result in terrorists getting off on a “technicality?”

The NYT’s piece foreshadows the likelihood that the warrantless surveillance by Bush will result in suppression motions (i.e., motions to exclude evidence tainted by the illegal surveillance), if not outright motions to dismiss prosecutions, to the extent they may be based on the “fruit of the poisonous tree,” a legal doctrine that says evidence obtained as a result of unlawful law enforcement behavior cannot be used to prosecute the targets of that evidence. The motions challenging prosecutions of “terrorists,” have already begun. Yahoo News. The unfortunate fact, though, is that even if Bush’s conduct results in the dismissal of terrorism prosecutions, the public is unlikely to ever know about it, or perhaps even worse, care.

First, any evidence that is secured from the super-secret NSA surveillance activities is likely to be presented in a closed proceeding. That is, the prosecutors are likely to claim that the information, to the extent it bears on the methods and manner of its collection, and therefore on the catch-all excuse of “national security,” must be presented “in camera” (a legalism meaning “for the judge’s eyes only”), or “ex parte” (without the presence of both parties). The legal framework for such secrecy is provided by the Classified Information Procedures Act and the Federal Rules of Criminal Procedure, specifically Rule 16.

An overlay on this official secrecy in judicial proceedings is the increasing use in the judiciary of “unpublished opinions.” There is no requirement that court orders, memoranda or opinions be published, and while we believe, as a society, that all governmental functions (including those encompassed by the judiciary) are carried out in public (though the unprecedented secrecy of the Bush administration should belie this belief), the fact is that a significant percentage of what goes on in the courtrooms of this country never sees the light of day. Indeed, the courts retain the discretion to place proceedings (including documents, transcripts and the like), “under seal.” The discretion to do so is virtually unfettered, especially given that the parties to such “under seal” proceedings have either requested such protection or don’t have any incentive to challenge it, as would, say, proponents of the public’s right to know who may not have standing to challenge court secrecy. And, to make matters worse, the rules of many state and federal appellate courts provide that judges may issue “unpublished” opinions which are then prohibited from being cited as precedent in other cases, even in those same courts. (Stare Decisis – PDF)
Thus, we may never know whether any prosecutions are poisoned by Bush’s extra-legal surveillance program.

… continued below …

But perhaps just as importantly, what will public reaction be if accused terrorists get off the hook because courts have found they were the victims of this administration’s unlawful surveillance methods. It is well to remember that the public doesn’t have much tolerance for releasing accused criminals on “technicalities.” Perhaps the most famous “technicality” enacted in the judicial history of this country was the case of Miranda v. Arizona. That case interpreted the Fifth Amendment to the U.S. Constitution as requiring that suspects be given certain warnings when taken into police custody, and mandating that confessions obtained in violation of the procedures it required be excluded from the evidence introduced against a criminal defendant.

The case was a cause célèbre for conservatives when it was decided, and even though it has remained in force for nearly 40 years, even surviving a challenge as recently as 2000 in which a statute enacted by Congress to water down Miranda was stricken down as unconstitutional, it still resonates with the public as a stricture on law enforcement which allows guilty people to go free on a “technicality.” One example of that attitude is the following:

I have no way of knowing whether the man on trial was guilty or innocent. I assumed he is guilty, because his lawyer used a legal technicality to get him off, rather than invoke a lack of real evidence.

That, I suspect, is how the public will perceive any dismissals of criminal cases because of the President’s end-run around FISA. The Bush administration will be able to color the dismissal of any prosecutions as the product of “activist” judges who don’t understand or appreciate the significance of the President’s “war on terrorism,” and a public which has been credulous enough to allow a variety of post-9/11 actions by this administration to effectively go unchallenged (i.e., the “Patriot” Act) will be placated. And, in the process, we will all be forced to eat from Bush’s poisonous tree.

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.

He Should Have “Taken Five”

When the New York Times
revealed that the President had personally authorized wiretaps in violation of

the law which requires a court order to do so, the President, wisely,
refused to comment on the accuracy of the story. In his interview with Jim
Lehrer of PBS‛ “”News Hour,” the day the story broke December 16th),

he said:

Jim, I
know that people are anxious to know the details of operations, they– people
want me to comment about the veracity of the story. It’s the policy of this
government, just not going to do it, and the reason why is that because it would
compromise our ability to protect the people.

Less than 24 hours later,
the President came out swinging, in his live radio/TV address from the White
House, announcing to all the world that not only was the Times‛ story accurate
in announcing that he had authorized such surveillance,

In the
weeks following the terrorist attacks on our nation, I authorized the National
Security Agency, consistent with U.S. law and the Constitution, to intercept the
international communications of people with known links to al Qaeda and related
terrorist organizations…

but that he intended to do
it again.

I have
reauthorized this program more than 30 times since the September the 11th
attacks, and I intend to do so for as long as our nation faces a continuing
threat from al Qaeda and related groups.

In other words, the president”s version of “I don’t care what FISA (the law
governing electronic surveillance) don’t allow…”

Relying, apparently, on the
advice of his attorneys,

including the Attorney General, the President has asserted that he has the
authority to order such surveillance even without complying with the black
letter of the law which governs such activities, the

Foreign Intelligence Surveillance Act of 1978 (“FISA”), which requires that
any surveillance, without exception, be pursuant to a court order. The law
requires either that a court order be obtained prior to the initiation of the
surveillance, or within 72 hours of that initiation, in special, “emergency,”
circumstances.

The law does not authorize
warrantless surveillance, under any circumstances, and the president”s assertion
(in an apparent exercise of activism he would criticize if it were a judge doing
it) that his authority to violate this law inheres in the Constitution, or in
the resolution authorizing the use of force in Iraq has already been thoroughly
and completely debunked by several legal experts, including prominent
conservative (and Reagan Justice Department official), Bruce Fein, who has said:
“President
Bush presents a clear and present danger to the rule of law,” and Jonathan
Turley, a Georgetown law professor, who opined, on the December 19th edition of
Fox News‛ “The O‛Reilly Factor,” that "it
is a crime to order surveillance or conduct surveillance unless you’ve gone to a
judge. Federal crimes can rise to impeachable offenses."

The law (FISA) provides that
it is a crime to ?engage in electronic surveillance under color of law except as
authorized by statute,”” and that such a crime is punishable by a fine of not
more than $10,000 or imprisonment for not more than five years. As in the case
of all criminal laws, every act in violation of the law constitutes a separate
offense, and each offense subjects the violator to the prescribed punishment.
So, if the President authorized (as he has admitted) 30 instances of
surveillance “except as authorized” by the statute, he has admitted to conduct
which, were he an ordinary citizen, would subject him to $300,000 in fines or
imprisonment for 150 years. That’s even longer than

Scooter Libby may be looking at for five counts of perjury and obstruction of
justice.

The astonishing thing about
the President’s admission is that he didn’t need to make it. Indeed, any
competent criminal attorney would have advised the President not to admit he had
violated a federal criminal statute. If he were an ordinary citizen, and had
been accused of committing a criminal act of this sort, he would have the
absolute right to assert his right against self-incrimination under the Fifth
Amendment to the U.S. Constitution. As any criminal attorney will tell you,
though, the wisdom of asserting the privilege against self-incrimination must be
weighed against the inevitable (if impermissible—at least in court
proceedings) inference that only guilty people make such an assertion. The
President, however, doesn’t suffer that risk, since he wouldn’t have had to
“take the Fifth;” he could have continued to hide behind “national security,” as
he did when he was first asked about it by Jim Lehrer.

Of course, the President
also could have, as did all his predecessors, denied his conduct. It worked, at
least for a while, for Nixon, Reagan, Bush 41 and Clinton, in all their
scandals. The fact that this president chose to confront his critics by
flaunting his disregard of the legal restrictions on his conduct will
undoubtedly contribute to his downfall. It is almost inevitable, given the
outcry from politicians, pundits, and legal scholars about this latest episode
of presidential hubris, that

impeachment is on the horizon. Indeed,

several members of Congress have already

floated the idea. Let’s not forget, the illegal use of electronic
surveillance was

one of the charges leveled against Nixon in his articles of impeachment.
And history, as we know, has a funny way of repeating itself.

If, and when, the
accountability moment comes for this President, I suspect he will be sorry he
didn’t “take Five.”

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.

What Would Fitz Do?

Given the revelations over the weekend that the government
is back in the business of spying on American citizens, and the
gauntlet-throwing admission by Bush that he authorized such action, and

would do it again, the question now is, who can reign in this outlaw
administration, and who can do it before any more damage is done. My answer to
that question is: Patrick Fitzgerald.

Sadly, the Special Prosecutor’s mandate does not include
violations of the Foreign Intelligence Surveillance Act, which

criminalizes domestic spying, but count me among those who believe that this
straight-shooting, law-enforcing, righteous American hero was probably one of
the most shocked, and possibly even outraged, recipients of the news that our
President believes he is above the law. As Fitzgerald has already concluded,
this attitude of arrogance and nose-thumbing is endemic in the Bush White
House. It manifests itself in the leaking of national security information and
in the belief that truth and the rule of law are considered dispensable by the
current occupants of the White House.

Fitzgerald already knows that Libby and Rove lie when it
suits them (and, of course, we all know that Bush, Rice, Cheney, Rumsfeld, et
al. have a history of doing so as well), and that they regard the law as
something that applies to them only when they decide it does. He also knows
that Cheney was in the Plame leak up to his ears, and that he knew, when he told
Libby about Plame’s employment, that she was a covert CIA operative (Paragraph
9 of the Libby Indictment). Whether Fitzgerald has enough now, with the
benefit of his second grand jury (and remember, I predicted that he wasn’t
finished

when he announced his first go-round of indictments — to modify the Libby
indictment, or to indict Rove and/or Cheney, he clearly has the power to send an
arrow through the lying heart of the renegade White House. An indictment of
Rove, even if it’s only for lying to federal agents and/or to a grand jury, will
burst the balloon inflated by the hubris of an administration that recognizes no
strictures on its conduct, legal or otherwise.

Remember, too, that we still don’t know what Fitzgerald
knows about Bob Novak’s source for the leak which first appeared in his column,
and set off the firestorm that culminated with Fitzgerald’s appointment. But,
we now have a clue about that, given Novak’s surprising

revelation that Bush knows who his source was, raising the possibility that
Bush himself may have been involved in the leak, and if so, that he may have
some criminal responsibility for breaking that law. And while Bush can’t be
indicted by a grand jury, he can certainly be named an unindicted
co-conspirator, which is, after all, the treatment Cheney received in the Libby
indictment.

Given that the Republican congress has shown itself to be
nothing more than a rubber stamp for Bush’s policies, whether it was treatment
of prisoners in Guantanamo, sweetheart contracts with Halliburton, kissing the
oil companies’ butts or the other demonstrable excesses of this administration,
there is absolutely no reason to believe the congress will be any more effective
at reigning in, much less holding to account, the Bush domestic wiretapping
program. This is especially so given that

some congressional leaders were, in fact, informed of this illegal program and
did nothing to stop it. The last thing we need here is another congressional
show hearing, as

Senator Specter is promising to do.

Mr. Fitzpatrick, where are you now that we need you?

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.

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.

GADFLY: Defeatist-in-Chief

In the aftermath of the GOP attacks on Murtha and Dean, let’s not forget who first told us the war couldn’t be won.

Did you notice the great hue and cry emitted by the administration and its shills when Howard Dean announced his view that the war
in Iraq was probably unwinnable? The RNC immediately posted its

“Retreat and Defeat” ad, superimposing a waving white flag over a larger
than life picture of Chairman Dean.

The administration’s attack dogs followed up with the likes
of Tony Blankley, the British ex-pat, former Gingrich slash-and-burn expert and
current Moonie disciple,

comparing Dean’s statement to a pre-civil war slaveholder, who, in the guise
of wanting what was best for his slaves, kept them nonetheless. And, of course,
the administration and its messengers continue to

marginalize Congressman Murtha for his call to pull U.S. troops out of Iraq “with all deliberate speed,” including Senator McCain’s criticism that Murtha
isn’t a “big thinker,” and has become “too emotional,” about the war. Would
McCain, I wonder, accept the same criticism of his impassioned campaign to
outlaw torture, or, indeed, of his

famously emotional display of support for GWB”?

But, the most interesting thing about this “winnability”
issue is that Bush himself, in one of his unguarded, un-ventriloquized moments,
stated his belief that the war can’t be won. For those of you who’ve forgotten,
let me remind you that when GWB was campaigning to fool us again in ’04, he gave
an interview to Matt Lauer of NBC “Today Show” fame in which he

said the war on terror couldn’t be won. It was probably the most honest
thing that man has ever said. He was referring, of course, to the “war on
terror,” for which, as we know, the war in Iraq is the “central front.” He tried
to take back his words subsequently, after his handlers told him what a bad
thing candor is (something he has diligently avoided since), but by then the
damage had been done.

The fact is, no one in a position to know thinks this war
can be won militarily, not the people closest to the people fighting the war
(e.g., Murtha), or the people who have devoted the most careful analysis to the
question (e.g.,
General William Odom), and all the bullying, insulting and political
posturing to the contrary won’t change that fact.

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.

RESOLUTIONS ARE EASY; RESOLVE ISN’T

The events of the past week in the U.S. House of Representatives have been rather dramatic. When Congressman John Murtha, from my old home territory of Western Pennsylvania, called for a withdrawal of troops from Iraq “at the earliest practicable date,” it set off a tidal wave in Washington. This wasn’t, after all, a wild-eyed liberal, like Russ Feingold, the Wisconsin Democrat who had previously called for a timetable for withdrawal (Washington Post). This was a blue collar Democrat, with a history of supporting the Pentagon in all of its warmongering activities, including increasing defense budgets, new weapons systems, “star wars” missile defense, and other pet projects so dear to defense hawks. Lest his conservative bona fides be questioned, he even offered a resolution this year seeking an amendment to the Constitution to allow voluntary prayer in public schools.

While it isn’t clear whether or not Murtha was an independent contractor in launching his broadside attack, or just the canary in the mine for the Democrat caucus in the House, testing the to see whether there might be support for a rapidly-phased withdrawal, it is clear that Murtha’s announcement caught a number of folks by surprise, mostly the members of his own party. Not, however, the members of the majority, who quickly figured out a way to relegate Murtha’s proposal to parliamentary oblivion. Murtha’s resolution, was quickly referred to a committee so it couldn’t be promptly considered or voted on by the House.

But the Republicans simultaneously presented their own version of the Murtha resolution, considerably abbreviated from the one Murtha submitted, and notably lacking the qualifying language “at the earliest practicable date,” of Murtha’s resolution, substituting instead the word “immediately.” Here’s what the GOP resolution says:

Expressing the sense of the House of Representatives that the deployment of United States forces in Iraq be terminated immediately.

This resolution was submitted by Rep. Duncan Hunter, the powerful chairman of the House Armed Services Committee, whose finest moment was undoubtedly when, at a press conference, he served (literally) examples of the culinary delights the prisoners at Guantanamo were being served to contradict the by-then ubiquitous assertions that those prisoners were being abused (Crooks & Liars video).

The Republican resolution put the issue in the starkest terms, and eliminated not only the important qualifier on Murtha’s resolution (“at the earliest practicable date”), but also eliminated a detailed preamble Murtha had placed in his version which recited all the reasons he had listed during his press conference for his belief it was time for American forces to leave Iraq (e.g., no progress, 2,079 deaths, G.I.’s the target of insurgents, $277 billion appropriated, etc.).

Continued below:

Murtha’s resolution reflected the reasoning that had already been expressed by military intelligence experts for prompt withdrawal (NiemanWatchDog and NiemanWatchDog and also served to further debunk the notion that withdrawal should be conditioned on the state of preparedness of the Iraqi army, an illusory goal, according to the authoritative piece by James Fallows in the December issue of The Atlantic Monthly. And let’s not forget that the majority of Americans now favor a short-term withdrawal from Iraq (Polling Report).

But the Republicans couldn’t be bothered with such details. They wanted to put the question, down and dirty, to the House, knowing that, reworded as it was, there was no way their resolution would pass, and even more importantly, that they could avoid a debate on the war that wasn’t based on phony jingo-patriotism (the American equivalent of “Islamo-fascism”), which is precisely what the “debate” that ensued on the House floor degenerated into.

In other words, the Republicans really weren’t interested in debating the wisdom of a withdrawal on the terms, or for the reasons, Murtha suggested; they wanted to rub Murtha’s face in the very idea of withdrawing troops at all, in essence saying to the Democrats, “so you want withdrawal, do you; well, we’ll give you withdrawal,” or as Rep. Marsha Blackburn of Tennessee put it:

Since they [Democrats] have been wanting it [debate], we’re going to have it. They’re going to take the heat and take the debate.

The same resolution which shoved Murtha’s resolution off the House agenda also placed the substitute resolution on that agenda for immediate debate, without the necessity for committee action, one of the privileges of majority rule. The Democrats, realizing they had been outflanked, vociferously protested the substitution of the Republican resolution for Murtha’s. “Give us a real debate, don’t bring this piece of garbage to the floor,” said Rep. James McGovern of Massachusetts.

And, of course, the flashpoint of the debate came when Rep. Jean Schmidt (they don’t call her “mean Jean” for nothing) made her now-infamous statement accusing Murtha of being a cut and run coward. Which, to his credit, caused my congressman, Harold Ford, Jr. to, according to the account in the New York Times, “charge across the chamber’s center aisle to the Republican side screaming that Ms. Schmidt’s attack had been unwarranted.” Unwarranted! Not exactly “give me liberty or give me death,” but a fighting word nonetheless.

A different account of Ford’s outburst appeared in the Washington Times: “Say it to Murtha,” Mr. Ford supposedly shouted at Rep. Tancredo while he [Ford] was being restrained by other members. Ford also, by some accounts, supposedly menacingly jabbed a finger at Tancredo during their confrontation, coming dangerously close to kicking some Republican butt (now that would have been worth the price of basic cable C-Span). Ford, in spite of his willingness to storm the Republican ramparts in support of his fellow congressman, wasn’t willing to support him in a much more important way—by co-sponsoring the bill, which 13 of his Democrat colleagues, including Reps. Rangel, Jackson-Lee and the outspoken (see above) Rep. McGovern, found the kojones to do. Putting his vote where his mouth was apparently didn’t interest Mr. Ford.

And as if to emphasize the point, here’s how Congressman “Finger Jabber” Ford, characterized the discussion on the House floor during his November 21st appearance on MSNBC’s “Hardball” (transcript).

Open and honest? Debate? Oh really, Mr. Ford? I guess, despite your theatrics, that scamming the congress into considering a resolution that was not Murtha’s in an effort to discredit the resolution that was his, and thereby evading the discussion of a responsible “exit strategy,” was your idea of “open and honest.”

To show how “open and honest” the debate was, J.D. Hayworth, Ford’s Republican counterpart on “Hardball,” during his remarks in the well of the house floor, displayed the front pages of the New York Times and Washington Post from that day (November 18th), both of which led with headlines that characterized Murtha’s announcement as calling for “immediate” withdrawal. That the MSM got it wrong is one thing (we’re used to that), but the fact that Hayworth didn’t have the integrity to refer to the actual wording of the Murtha resolution speaks for itself. (I’m convinced Hayworth and Schmidt have their hair wrapped too tightly—have you seen their “do’s”—and that’s what makes them so bitter).

Ford’s remark may be why one of Matthews’ other guests on the program, Stuart Rothenberg, of the Rothenberg Political Report,
said of Ford’s appearance:

[T]hey [Democrats) are divided. When you listen to Harold Ford and compare that to Ted Kennedy or something, how many parties do we have here? Their problem is that they don‘t have a single message.

Ford ‘s statement undercut his party’s righteous position on the Murtha withdrawal proposal, and worse, contradicted his party’s leaders on the floor, none of whom wanted a bogus debate on the bogus Hunter resolution. Nonetheless, when it came time for a vote, only three of the over 400 who voted on the Hunter resolution voted in its favor (Rollcall).

The rest of the Democrats ran for cover, fearing that in the war against un-patriotism being waged so much more successfully by the GOP than the war against terror, they would be the victims, when they could (and should) have maintained their righteousness on the Murtha proposal and refused to vote at all on Hunter’s. Six representatives (including New York’s Jerry Nadler) did precisely that, bless their hearts (as we say down here).

There was, perhaps, no better example of the Democrats’ “cut and run” reaction to Murtha’s resolution than Paul Hackett, the Iraq war veteran whose narrow loss for an Ohio seat in the House to “Mean Jean,” was widely touted as a referendum on the administration’s handling of the war. During his appearance on the “Hardball” show following his defeat, (as he did during his campaign), Hackett unambiguously supported an immediate withdrawal from Iraq. Here’s what he said:

[NBC Correspondent David] GREGORY: All right. But those are generalities. So, what should the mission be? You define it for him [Bush].

HACKETT: I think right now the mission is, WE PICK UP AND WE GET OUT OF THERE as efficiently and cleanly as possible [emphasis mine].

GREGORY: Right away, bring troops home today?

HACKETT: I think that’s what we’re moving toward anyway.

(Transcript)

But when he appeared on Hardball as a candidate for Mike DeWine’s Senate seat, on the November 23rd edition of the show (transcript not yet available), Hackett seriously undercut his own position by resisting support for “immediate” withdrawal, even backing away from supporting Murtha’s resolution to do so. Oh Paul—we thought we knew ye. If Hackett thinks Bush & Co. are “chickenhawks,” maybe we should start calling him, and his ilk, “chickendoves.”

Sadly, as fractious and fractionated as the Republicans have become, as low as the president’s poll numbers may be (or may be likely to go), and as graphic as the picture of the party in power’s corruption is becoming, the Democrats still haven’t figured out how to capitalize on their adversaries’ weaknesses. And if Rep. Ford’s and candidate Hackett’s performances on “Hardball,” are any indication, they won’t be ready to do so until they’ve figured out how to minimize their own.

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.

It Can Happen Here!

“There are only two families in the world, as my grandmother used to say; the haves and the have-nots.” –Sancho Panza in Don Quixote de la Mancha, by Miguel de Cervantes

______________________

Hey, you! Yeah, you, sitting in front of your TV or
computer screen, watching pictures of France burning. Maybe you’re not all that
upset that the French are getting what you consider to be their comeuppance for
thumbing their nose at “Operation Iraqi Freedom.” You may even revel in the
Franco-bashing statements made by Bill O’Reilly, including about the French
people’s supposed aversion to personal hygiene, and the fact that THEY DON’T
SPEAK ENGLISH (the uncivilized bastards). You’re probably smug in the assurance
that the French riots are just another one of those disasters that only happen
in some other part of the world.

I have some news for you: the same conditions which gave
rise to the rioting in France exist right here in the good old U.S. of A. In
fact, in some ways they’re even worse here than they are in France. We know that
racial and economic tensions can, and have, reached flashpoints in this
country. Los Angeles in 1992, the unrest in New Orleans that followed the
“natural selection” of African Americans as the victims of government ineptitude
following Hurricane Katrina, and the rioting in Toledo last month in response to
a hate group’s demonstration are just the most recent examples of a phenomenon
with a rich history, much of which has had a racial etiology.

The rioting in France is a manifestation of the
disenfranchisement of a significant subculture in that country, African and Arab
immigrants (i.e., black people in a white society), whom the government has
taken great pains to marginalize and relegate to second class citizenship
status. These immigrants, despite being French citizens, are already the
victims of a form of apartheid not unlike what existed in South Africa. But it
didn’t help that situation much when the French interior minister referred to
the rioters using a word as inflammatory to them as the “n” word would be to
African Americans here.

The uprising in France is also the natural consequence of a
worldwide phenomenon, but one which has gotten, and is getting, progressively
worse in this country: the gap between the haves and the have-nots.
A recent study by the United Nations Human Development Report Office shows
the bad news that of the 124 nations studied, the U.S. ranks 74th, behind
Vietnam, but the good news, that it still ranks slightly ahead of Iran. France
comes in at 34th. This mirrors similar studies done by the World Bank and by
the Organization for Economic Cooperation and Development, the latter of which shows that, of the 27 member countries, the U.S. ranks 24th. The disparity
is no more graphically illustrated than in the comparison of executive to worker
compensation. According to
a recent survey, executive compensation in the U.S. is over 400 times what
line workers make. That same comparison is only 15 times in France.

On virtually any measure you care to name, the equivalent
subculture in the U.S. to the one rioting in France enjoys a much lower quality
of life than the middle class. Unemployment levels, incarceration levels,
income levels, education levels, health levels are all disproportionately higher
among African Americans. The natural consequence of this increasing gap is,
inevitably, disaffection (to put it mildly), and, ultimately, violence.

Now, would you like a serving of “freedom fries” with that
dose of reality?

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.

Et tu, Scooter

(OR, WHY SCOOTER WILL NEVER GET TO TRIAL)

Now that Scooter Libby has done his crutch-assisted version of the perp hop for his arraignment, the second biggest question on everyone’s mind in the CIA leak case (the first, of course, being a multiple choice one of whether Karl Rove will either (a) be indicted, (b) resign, (c) both, (d) apologize and throw himself on the mercy of the American people, or (d) none of the above), is whether Libby’s case will go to trial. I have already weighed in on this question, in no uncertain terms.

Much has been made of the fact that Libby has now “lawyered up” with the addition of two prominent criminal defense attorneys, Theodore Wells and William Jeffress, Jr., both of whom accompanied Libby to his arraignment, and one of whom, Wells, made what could only be described as a resounding pronouncement on the courthouse steps that

in pleading not guilty, he has declared to the world that he is innocent, he has declared that he intends to fight the charges in the indictment, and he has declared that he wants to clear his good name and he wants a jury trial.

YEAH, RIGHT! This is the same kind of speech every criminal defendant’s lawyer gives who, for whatever reason, hasn’t worked out a deal for his client before he’s been indicted. It goes hand in glove with the “innocent until proven guilty,” flag-waving pablum everyone spouts about the accused, even if they really believe he’s guilty (which most people usually do). But here, because Libby has hired two “trial lawyers,” one of whom has made a stentorian speech about his client’s innocence and desire to clear his name, the uninitiated are assuming it must mean he really does want to go to trial. Nothing could be farther from the truth, and the fact that accomplished trial lawyers have been hired is the strongest evidence of that.

Continued below:
As in all adversary legal proceedings, where each party is represented by counsel, there is a stage of the proceeding (sometimes more than one) where the parties’ lawyers do what I call the “war dance.” It’s a bit like what goes on in the animal kingdom when two beasts who have come to loggerheads square off against each other and strut their stuff in an effort to convince their adversary it would be a mistake to rumble.

So, one party bellows, followed by the other; then one party thumps the table, followed by the other, and so on. And, of course, the more credibly each participant in the “war dance” struts his stuff, the more they may be able to avoid, or at least mitigate, the inevitability of a rumble. Sometimes that means the party that brandishes the biggest weapon during this stage of the preliminaries, can walk away without having to fire a shot. And big guns require big (read: expensive) gunslingers. That, my friends, is also why high profile criminal defendants hire high power defense lawyers.

What’s happened so far in the Libby criminal proceedings is that the prosecutor has had his opportunity to bellow and thump the table (with the indictment and during his press conference announcing the indictment), and now Libby’s lawyers have had the same opportunity (Mr. Wells’ pronouncement on the courthouse steps). Libby has now said to Fittzgerald, “OK, Mr. Big Stuff Prosecutor; my defense team can beat your prosecution team any day of the week” (or in GWB vernacular, “bring it on”). Now the parties will retreat to their separate corners and, yes, go through the motions of preparing for trial.

But let me assure you, behind the scenes there will be some intense negotiations between the government and Libby’s lawyers to enter into some kind of plea agreement. And, those negotiations will get even more intense as Libby’s defense team finds out what the evidence against their client is, which they will. Key in those discussions will be whether Libby will rat out his boss, the Vice President, or lead prosecutors to where any other bodies may be buried in the whole Wilson/Plame debacle (i.e., the Italian connection). But even if he doesn’t turn on his boss, his boss may turn on him, trying to force him to cop some kind of plea to lesser, or limited charges, in order to avoid a full-blown trial. In fact, most criminal defendants (96% in 2003) choose to plead guilty or no contest.

But don’t kid yourself. Just because Libby has hired “trial” attorneys, or even these particular ones, doesn’t mean they won’t be doing everything they can to explore ways in which they can avoid going to trial, not because they’re afraid to, but because they know the risks and costs of doing so.

For example, one of Mr. Wells’ most prominent clients was the famed junk bond king, Michael Milken. Milken, who, despite the same kinds of pronouncements of innocence and intended vindication at the time of the indictments (which included 98 counts of racketeering, and securities fraud, among others), didn’t go to trial. Instead, the prosecutor in the case, Rudy Giuliani (back before he started making the big bucks) and Milken’s lawyers, including Mr. Wells, entered into a plea agreement under which Milken eventually served 22 months in federal prison, paid $600 million in fines and restitution and agreed to be barred from the securities industry for life. Some bargain, eh?

And Mr. Jeffress? One of his high profile criminal clients was the CEO of the drug chain, Rite-Aid,, Martin Glass. Glass was indicted on numerous counts of securities fraud, mail fraud, wire fraud, conspiracy, perjury and obstruction of justice. Instead of going to trial, he pleaded to two conspiracy charges, and payment of a $500,000 fine, and was sentenced to an eight-year jail term.

I mention these two examples (and I assume there are probably others) in the case of Libby’s new legal team only to point out that just because these are hot-shot trial lawyers doesn’t mean they aren’t more than able and willing to pack their trial weapons in, and go for the best deal they can possibly get for their client. This is especially so, given the effect of plea bargains on the federal sentencing guidelines (one of which has substantially increased the time required to be served for the crime of obstruction of justice), and the ability to have more say about which of the “glamor slammers” one gets to go to when one plays ball with the prosecutors.

The simple fact is that in any criminal prosecution, but even more so in this one, both the stakes and the costs are simply too high to Libby (and to the people for whom he’s acting as the patsy) to go all the way. The proceedings leading up to and including a trial for a very high profile defendant can easily run into seven figures, and sometimes higher. And, while no price may be too great to pay for freedom, a well-negotiated plea agreement that obviates the pain, suffering and financial distress associated with going all the way through a trial, even if it may be at the expense of some kind of negotiated punishment, is almost always better than going “all the way.” No, my friends, there will be no trial for Scooter Libby.

P.S. Let’s also remember, by way of explaining why a trial in this case will never happen, that if worse comes to worst, and it really looks like Libby’s case is going to go to trial, and that Cheney (and who knows who else the White House doesn’t want to testify) might actually have to testify, there are at least three other alternatives available to the powers that be: first, given the White house code of “omerta,”

They can promise Scooter that if he takes the fall, and even if he goes to prison for it, they’ll make sure he’s “taken care of” when he gets out; second, they can always involuntarily (and permanently) put Libby in one or another (official or otherwise) witness “protection” program and third, if all else fails, they can always send him to one of the recently-disclosed CIA secret prisons, where they’ll never have to worry about seeing him appear in a courtroom in the District of Columbia (or any other courtroom, for that matter), ever again. Remember (wink, wink), those “detainees” are innocent until proven guilty too.

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.

Behind Closed Doors

GOVERNMENT BEHIND CLOSED DOORS—NOT ALWAYS A BAD THING

Sometimes (as in the Senate’s three-hour “executive session” on Tuesday), a little secrecy can go a long way.

The hermetic sealing of the Senate chamber on Tuesday, following the invocation by Majority Leader Harry Reid of a little-used provision of the Senate’s rules, may have demonstrated something far greater than the rival parties’ capacity for playing “gotcha last;” it also proved that the Senate can accomplish more, in a shorter time, behind closed doors, that it ever seems to be able to in the full glare of the public eye.

Once C-Span, spectators, staffers and other hangers-on were ejected from the Senate chamber, the Senate accomplished in less than three hours what it hasn’t been able to accomplish in 18 months—getting one of its recalcitrant committees to honor a promise to finish an investigation into the misuse by the Bush administration of intelligence about WMD’s, one which it’s been dragging its feet on for all that time.

If there’s a lesson here, it may be that sunshine is not the universal disinfectant proponents of open government, freedom of information, and the like actually believe. It may actually be an occasional repellant. Of course, that’s not to sanction the many abuses of the public’s right to know perpetrated by the administration of Boris Bush and Natasha Cheney (the latter being the one that brought us the famous “secret energy task force”). But just as we marvel at the mystery of what actually happens to the light in our refrigerators when we close the door, but are never tempted to get in and close the door behind us to find out, it was far better that we saw the light that emerged after the Senate’s doors were re-opened. Which is not to say that I would have minded being the proverbial fly on the wall during those roughly three hours.

For anyone like me, who’s fascinated by C-Span’s coverage of Congressional goings-on (I first got hooked during the Bert Lance hearings—yes, that makes me a dinosaur, but how many people who still have all their teeth remember the cartoon characters Boris and Natasha, for that matter?), the machinations of the gang of aging white men who comprise the U.S. Senate are ten times better than any episode of “Bored Housewives” (or whatever the name of that insipid show is).

The only problem is, the cameras, I’m afraid, sometimes get in the way of our deliberative bodies’ real work—getting something meaningful done.

So, even though it will rank up there in the pantheon of all-time television moments, the announcement by Senator Frist that he could diagnose a person’s neurological condition just by looking at a video of them, that moment, and all the histrionics accompanying the shameful meddling by the Senate in the Terry Schiavo tragedy, graphically demonstrated how jockeying for public eyeball position distracted senators from doing the country’s business. I’m beginning to think C-Span should title its coverage of what goes on on the floor of the Senate as “The Posturing and Bickering Shows.”

Continued below:
In a way, I’m sorry the country didn’t get to see, in real time, the miraculous moment when the Democrats emerged from their three-year-long persistent vegetative state caused by the trauma they inflicted on themselves in voting to give the President the authority to wage war in Iraq

Benefiting from an apparent reverse orchiectomy (with apologies to my hero, Lance Armstrong), the Democrats finally stood up to the evasion and phony lip service they’ve been subjected to for lo these many months. Enough of the bogus “my good friend, Senator So-and-so,” and “the Honorable Gentleman/Gentlelady” crap, a charade we’d already seen viciously outed in the three-word epithet uttered by Dick Cheney (the Senate’s “president”) to Patrick Leahy in the cloakroom of that august body.

Any further doubt we had about the collegiality of the band of Senate brothers was firmly resolved when, in a speech responding to the apparently outlandish suggestion by Senator Tom Coburn that New Orleans could use use $250 million dollars to rebuild a portion of its destroyed interstate highway more than the 50 residents of a remote Alaskan island could use it to build a bridge to their outpost they obviously never needed or wanted, Senator Ted Stevens, in what the Washington Post characterized as a “hissy fit” engaged in the ultimate act of gentility by threatening to resign from the Senate and be taken out on a stretcher (how did they resist that temptation?). Then, with veins popping and head trembling, he bellowed his response to Coburn’s suggestion: “NO”. And, of course, he was overwhelmingly supported by the majority of his fellow porkmeisters. So much for the dignity of the Senate.

At a time when virtually everything from gory surgical procedures to tearful testimony in murder trials can be viewed on one TV channel or another, and when broadcasting such other spellbinding events as Supreme Court arguments (yawn!) to the administration of lethal injections to condemned murderers (yikes!) is being debated, it may be time to take a step back, and even to see whether we can put back some of the milk that’s been spilled from the TV bottle. It’s likely to remain easier to consume there.

Cross-posted at The Memphis Flyer.

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.