Here’s the video of Sen. Barack Obama questioning Gen. David Petraeus and Ambassador Ryan Crocker in the Senate Foreign Relations Committee.
Summarizing for now, Obama told Petraeus and Crocker to define success in Iraq. They couldn’t (or wouldn’t).
My first cut at Hillary Clinton’s questioning Petraeus and Crocker is Clinton did a very good job. With three questions, she hit two home runs and one grand slam.
First, she skillfully illustrated (see video) George Bush’s disregard for the American people and Congress when she asked Ryan Crocker about the Security Forces Agreement Bush is pursuing with Iraq. Briefly summarizing, she let Crocker point out, in his own words, that the Iraqi parliament was privileged enough to review and/or approve the agreement, but the same rules and privileges did not apply to the U.S. Crocker said that he and the administration had no intention of letting Congress review the agreement.
Clinton then deftly addressed the ambiguity encasing Petraeus’ and Crocker’s report to Congress. Of course the ambiguity was not going to be resolved in six to ten minutes, but she appropriately laid it out to discredit critics such as Lindsey Graham and Joe Lieberman. And she made it clear and simple for the American people to see. What they (the people) do with it is another matter. Good political maneuvering
But far more importantly, in one question, Clinton stepped all over the most compelling issues — the absurdity of the hearings, the justification of the war (past and present), and the management of the war. She asked Petraeus:
"What conditions would have to exist for you to recommend to the president that the current strategy is not working. It seems apparent that you have a conditions-based analysis, as you set forth in your testimony. But the conditions are unclear. They certainly lack specificity and the decision points with respect to these conditions are also vague. So how are we to judge, General Petraeus, what the conditions are or should be and the actions you and the administration would recommend based on pursuing them."
There is no way Petraeus could possibly give an appropriate answer to that question, which in itself proves just how absurd the hearings are. It is the president’s responsibility to decide policy and the military develops a strategy to meet the policy. George Bush has abdicated not only his role as Commander in Chief to Petraeus, he has also given Petraeus the authority to decide what policy is. Bush has made it clear Petraeus will determine how the war will be waged and when it will end.
A perfect example of Republican ideology on and giving Petraeus policy and Commander in Chief decisions is the op-ed Joe Lieberman and Lindsey Graham published in the Wall Street Journal yesterday.
As I said, on first glance, I believe Clinton did an excellent job, especially considering the time available. After I’ve had more time to review the exchange, I might interpret it differently or see something else. If I do, I’ll post it.
Here are John McCain’s opening statement and questioning of Gen. David Petraeus and Ambassador Ryan Crocker at today’s Senate Armed Services Committee Hearing. McCain is the Ranking Member.
C-SPAN interrupted the Petraeus, Crocker hearings, sending myself and others scrambling, and unfortunately missing Hillary Clinton’s questioning. So, here’s Hillary’ Clinton’s opening statement and questions. For the sake of brevity, I have posted it without listening to it, so I’ll have to reserve any commentary until later. (Read commentary.)
If you would like to read the prepared testimonies of Gen. David Petraeus and Ambassador Ryan Crocker to the Senate Armed Services Committee this morning, they are available for downloading.
In an interview with CNN yesterday, Sen. Arlen Specter (R-PA), ranking member of the Senate Judiciary Committee, called on Congress and the Justice Department to investigate the breaching of Obama’s, Clinton’s, and McCain’s passport records.
"There are federal criminal statutes involved. I think that ought to be a very intense investigation. I think privacy is a very fundamental matter"…"I think it ought to be something for Attorney General Mukasey, and I think that it may well be something for the Senate Judiciary Committee, where I’m the ranking member."
The Times revealed yesterday the CIA possessed and destroyed videotapes documenting their illegal torture of detainees and all of sudden Sen. Jay Rockefeller (D-WV) is “really sick of this” and Rep. Jane Harman (D-CA) demands “this matter must be promptly and fully investigated.” Why didn’t these Highly Ethical Democratic Leaders get sick and demand an investigation when they first learned of the tapes and their destruction?
The Highly Ethical Democratic Leaders previously knew about the tapes but did nothing. Harman admitted knowing about the tapes In 2003 and allegedly was concerned they would be destroyed. Although Rockefeller did not specifically state he had knowledge of the tapes in 2003, at minimum he learned the tapes were destroyed in November 2006.
Rep. Jane Harman of California, then the senior Democrat on the House Intelligence Committee and one of only four members of Congress informed of the tapes’ existence, said she objected to the destruction when informed of it in 2003.
“I told the CIA that destroying videotapes of interrogations was a bad idea and urged them in writing not to do it,” Harman said. While key lawmakers were briefed on the CIA’s intention to destroy the tapes, they were not notified two years later when the spy agency went through with the plan. Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., said the committee only learned of the tapes’ destruction in November 2006.
Since Rockefeller was the ranking member of the Senate Intelligence Committee in 2003, it is hard to believe he was not one of the Members of Congress informed of their existence in 2003. In these statements, Rockefeller expresses concern that the tapes were destroyed without his prior knowledge or permission, but there is no denial he was not aware of their existence.
“They destroyed it without letting us know, without asking our permission, without consulting, without informing us in any way,” Rockefeller said. “They just did what the CIA likes to do.”
“…It’s a manipulation of the Congress — the use of two people of the Senate, two people out of the House, because nobody else can be told, including our committee. We can’t even talk to anybody, and they say, ‘Oh, they were briefed.’ ”
Of course there are laws prohibiting the release of classified information, which would amount to treason in certain cases, but surely there is a point when a Senator or Representative must adhere to their Oaths.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Where does it say these Highly Ethical Democratic Leaders must ignore their Oath when Dick Cheney, the Director of the CIA, and the Director of National Intelligence informs them of their illegal activities they have deemed classified for the sole purpose of protecting themselves from prosecution?
Update: Glenn Greenwald answering the question "what was Rockefeller and Harman supposed to do," gave this response.
There are countless mechanisms available to a U.S. Senator or Representative to do something about illegal behavior they discover. Anyone — not just someone in such a position — has mechanisms available to them under whistleblower laws to intiate proceedings to investigate illegal government conduct. Why couldn’t they have done that?
They could have also communicated much more aggressively within the government that unless the illegal behavior stopped, they would invoke those mechanisms. Why couldn’t they have done that?
They could also commence closed door investigations to exert oversight over these illegal intelligence activities. The whole point of the SECRET SELECT INTELLIGENCE COMMITTEES is to enable Congress to exercise oversight even over the most secretive governmental conduct, precisely in order to prevent illegal behavior of this sort.
I’m amazed that there are people willing to depict Rockefeller and Harman as some sort of helpless victims who were unable to act. They could have taken numerous steps to impede, if not stop and expose, the criminal conduct of which they became aware. Yet they didn’t — not because they couldn’t, but because they didn’t want to.
Glenn has litigated constitutional law; therefore, his statements reflect an applicable professional basis rather than a layperson’s opinion.
No wonder George Bush gave Democrats in Congress a tongue-lashing today. The Post did not mention in its piece earlier today on Bush’s tongue-lashing press conference that Democratic leaders had announced Congress would reduce its work week next year from five days to four days.
I doubt the Decider has stopped laughing yet, and I can’t say that I blame him. In fact, I give the guy an A+ for capitalizing on the perfect political storm, although realistically, he nor his comrades on Capitol Hill should say a word. Since taking office, Bush has had roughly the equivalent of a one-year vacation, and Congress worked only two days per week under GOP leadership.
Maybe I have the wrong perspective on this, but I think it makes Pelosi and Hoyer look like fools. They strolled into Congress ten months ago, made promises of every kind and boasted about working the same schedule most Americans do (40-hours). So much for the hard work and promises. When you only have a 24 percent approval rating and have failed to deliver on the most important issues promised in the campaigns last year, it’s probably not the best time to announce you plan to work less .
Henry Waxman’s committee alone has more than two dozen investigations currently under way. Given the Democratic leadership’s current attitude, he might as well just eliminate about half of them. Bush and Cheney will be out of the White House and long since published "My Pet Goat, Vol. II" before Waxman will be able to even subpoena the crooks.
The Relevance of an Irrelevant President
Judge Mukasey and the Senate Confirmation Hearings
Turkey Approves Attacks in North Iraq
Blackwater May Be On Its Way Out
Economy: Bank of America Net Falls 32%
Media Conglomeration and Collaboration
Democrats continue to prove they don’t have a spine, much less know what one is. From the Washington Post:
“Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government’s domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.
Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers.
The Washington Times’ piece today indicates just how weak the Democratic Congress is.
House Democrats, confounded by a Republican procedural maneuver that would force an embarrassing vote on terrorism, yesterday called off a vote on an electronic-surveillance bill that the White House opposes.
Republicans would have forced Democrats either to vote to effectively kill the bill that restricts federal wiretap power or to vote against authorizing the government to spy on Osama bin Laden, al Qaeda and other foreign terrorist groups.
They’re scared to death George Bush is going to resort to name calling. What brave and courageous Patriots our Democratic Leaders are.
Not only do the major telecom companies get immunity, so does the entire Bush administration. Congress is about to let the Bush administration get away with the most egregious lawbreaking by any president in history.
FISA isn’t the only area Congress continues to be ineffective.
Lawmakers Shudder at Tax Increase To Fix AMT
Almost a year after vowing to protect millions of middle-income families from a special tax meant for millionaires, Democratic leaders are still struggling to find ways to raise the billions of dollars needed to fix the problem.
In a series of meetings and interviews yesterday, lawmakers reiterated their determination to prevent the alternative minimum tax from imposing a major tax increase on 23 million American households this year.
President Bush’s news conference yesterday.
President Bush on Wednesday criticized a Congress that has not “managed to pass many important bills” and is “just getting started” on funding bills.
At the beginning of a White House press conference, Bush launched an attack against Democrats for not doing enough to get the nation’s business done.
“There’s little time left in the year, and Congress has little to show for all the time that has gone by,” the president said.
Bush hammered Democrats on sending him State Children’s Health Insurance Program legislation that they knew would be vetoed, trying to make changes to legislation updating the Foreign Intelligence Surveillance Act (FISA) and failing to pass appropriations bills.
“Congress has more important work to do than antagonizing a democratic ally in the Muslim world, especially one that’s providing vital support for our military every day,” he said.
Asked if it was all the Democrats’ fault that bills are not moving, especially with regard to veto threats from the White House on several key pieces of legislation, Bush said he believes it is.
“I’m not part of the legislative branch,” the president said. “All I can do is ask them to move bills. It’s up to the leaders to move the bills.”
And by all means, don’t miss Mr. Bush’s narcissistic statements position on remaining relevant.
From the Washington Post:
Attorney general nominee Michael B. Mukasey said yesterday that he would chart an independent path for the Justice Department after the tumultuous tenure of Alberto R. Gonzales, testifying that he would not be afraid to disagree with the president and would resign rather than implement policies that he believed violated the Constitution.
Mukasey, appearing for the first day of hearings before a generally friendly Senate Judiciary Committee, also said the president cannot use his powers as commander in chief to “override” prohibitions against using torture or cruel, inhuman and degrading conduct in the interrogation of prisoners.
“Are you prepared to resign if the president were to violate your advice and in your view violate the Constitution?” asked Sen. Arlen Specter (R-Pa.). Mukasey responded: “That would present me with a difficult but not a complex problem. I could either try to talk him out of it or leave.”
See TPC’s post regarding Mukasey’s response on torture
You may want to check out the live blogging done yesterday by Glenn Greenwald or The Gate (Part I, Part II).
Mukasey’s first dilemma? (WSJ - sub. req.)
Michael B. Mukasey, the former federal judge expected to win confirmation as attorney general, vowed to end allegations of political meddling at the Justice Department by ensuring that hiring decisions are made without regard to partisan affiliation.
A test could come quickly. If confirmed, he will soon have to decide what to do about the stalled nomination of Craig Morford, the acting deputy attorney general who, until recently, appeared set to get the nod to be the Justice Department’s No. 2.
Mr. Morford, a 48-year-old former assistant U.S. attorney in Cleveland, has been the department’s parachuting troubleshooter for years, and he hasn’t been afraid to ruffle feathers. In August, when he was named as acting deputy, former Attorney General Alberto Gonzales gave him a mandate to act like a chief operating officer hired to fix a company in crisis. That was one month before Mr. Gonzales resigned from the top job.
Turkey approves attacks in north Iraq.
By an overwhelming margin, Turkey’s parliament on Wednesday authorized military raids into northern Iraq in pursuit of Kurdish rebels who have attacked Turkish targets.
The vote added to rising tensions in the region, with Iraqi Kurdish forces, known as peshmerga, going on high alert, although senior Turkish officials indicated that no invasion was imminent.
Blackwater may be on it’s way out.
A State Department review of private security guards for diplomats in Iraq is unlikely to recommend firing Blackwater USA over the deaths of 17 Iraqis last month, but the company probably is on the way out of that job, U.S. officials said Wednesday.
Blackwater’s work escorting U.S. diplomats outside the protected Green Zone in Baghdad expires in May, one official said, and other officials told the Associated Press they expect the North Carolina company will not continue to work for the embassy after that.
Putin: Iran dialogue better than sanctions.
Russian President Vladimir Putin said on Thursday that direct dialogue was a better way of easing the diplomatic crisis over Iran’s nuclear ambitions than the threat of military force or sanctions.
Putin, speaking at an annual question-and-answer session, brushed aside a reported plot to kill him on a visit to Tehran last week.
Bhutto Returns to Pakistan After 8-Year Exile
Benazir Bhutto, the Pakistani opposition leader and former prime minister, arrived in Pakistan this afternoon, ending her eight-year exile in a return that is expected to reconfigure the country’s already unsettled political landscape.
She stepped down onto the tarmac at Karachi airport at around 2 p.m. local time after a flight from Dubai, wearing a green shalwar kameez — a traditional Muslim outfit — and white headscarf, the colors of the Pakistani flag.
‘Chemical Ali’ is transferred to gallows site in Iraq
The man known as Chemical Ali for ordering poison gas attacks against the Kurds in the 1980s has been flown by helicopter from a U.S. base to a site near a prison gallows in Baghdad, according to an Iraqi police official, suggesting that his execution was imminent.
The prisoner, Ali Hassan al-Majid, a cousin of Saddam Hussein, was sentenced to death on June 24 for his role in the Anfal campaign that killed as many as 180,000 Kurds.
Bank of America’s Net Falls 32% On Write-Downs, Trading Losses (WSJ - sub. req.)
Bank of America Corp. posted a 32% drop in third-quarter net income as the company recorded $247 million in write-downs related to leveraged buyout loans, $607 million in trading losses and sharply higher credit-loss provisions.
Shares slumped in premarket trading, falling to $48 from Wednesday’s close of $50.03.
The nation’s No. 2 bank by market capitalization, which hadn’t given write-down and loss projections guidance like many of its rivals, reported net income of $3.7 billion, or 82 cents a share, compared with $5.42 billion, or $1.18 a share, a year earlier. In addition to the write-down and trading losses, Bank of America recorded $2.03 billion in credit-loss provisions, compared with $1.17 billion a year earlier. Revenue fell 12% to $16.3 billion.
FCC Chairman Offers Ownership Plan
Media conglomerates are probably the greatest danger to freedom of the press and maintaining a true Fourth Estate. One needs to look no further than FOX News Noise to understand why.
The chairman of the Federal Communications Commission is proposing a plan that would wrap up by the end of the year the long-running debate over how many media properties a company should be allowed to own in a single market.
FCC Chairman Kevin Martin’s proposal would allow for public comment on the proposed rules in mid-November and a commission vote on Dec. 18.
Among the rules that are potentially on the chopping block is a ban on one company owning a newspaper and broadcast station in the same market. The rule is of particular interest to Tribune Co., which is the subject of a pending buyout led by real estate magnate Sam Zell.
Group of Net, Media Companies To Announce Copyright Guidelines
Look out YouTube, Blip, etc.
A group of Internet, media and technology companies plans to announce today a set of guidelines they have agreed on aimed at protecting copyrights online, according to a person familiar with the matter.
The companies supporting the principles include CBS Corp., Dailymotion, Microsoft Corp., NBC Universal, News Corp.’s Fox and MySpace units, Viacom Inc. and Walt Disney Co., the familiar person says. Notably absent is Google Inc., which had been in discussions about possibly joining the group, people familiar with the matter say.
The guidelines are meant to address copyright-related issues that have flared up as user posting of content — particularly video — to the Web has boomed.
The agreed-upon principles include using technology to eliminate copyright-infringing content uploaded by users to Web sites, and blocking any infringing material before it is publicly accessible, says the person familiar with the matter.
Google on Monday unveiled technology it has been testing to automate the identification of copyrighted material on its YouTube video-sharing service. It said the technology cannot yet prevent infringing content from being posted initially, though it can pull flagged content off the site “in a matter of a few minutes.”
Viacom in March sued Google, alleging willful copyright infringement by YouTube and claiming over $1 billion in damages. Google has said that it complies with U.S. law by removing any infringing video clips when requested by the content owners.
After a markup session yesterday, the House Judiciary Committee passed the RESTORE Act with (The Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007) after incorporating three amendments submitted during the markup session. Overall, the changes made yesterday do not drastically alter the overall provisions of the bill as introduced on October 9 (summary, full text).
Following are summaries of the three amendments and their respective sponsor(s). I am almost certain the Jackson-Lee and Scott amendments were limited to wordsmithing. For example adding the modifier “significant” to the word “purpose.” I do not have any information on the Nadler amendment at this time beyond the summary provided below.
Jackson-Lee (TX): An amendment to clarify the bill’s language and prevent “reverse targeting” by requiring the Administration to obtain a regular FISA warrant whenever a “significant purpose of an acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States” rather than waiting until said person formally becomes a target.
Nadler (NY): An amendment to improve court oversight over the government’s compliance with the FISA Court’s orders by requiring the court to assess compliance with its orders as opposed to merely authorizing it to do so and by removing limitations on its review.
Scott (VA): An amendment to the bill’s auditing and reporting requirements. The current standard is that acquisition must be with the “significant purpose” of gathering foreign intelligence. The amendment seeks to obtain information about what additional purposes for which the government may be collecting.
Given the significance of this bill, a comparative review of the current and proposed legislation may be helpful, but first let’s take a moment to summarize the evolution of the surveillance bills for clarity.
The first post-Watergate intelligence surveillance statue, FISA, was passed in 1978 and has been modified numerous times over the years. In general terms, the statute and applicable revisions have continued to be commonly referred to as FISA. In August of this year, immediately prior to the summer recess, Congress acquiesced to the Bush-Cheney administration’s fabricated terror threat and chest-pounding to pass the Protect America Act (PAA), a temporary law, which gave Bush carte-blanche to conduct warrantless eavesdropping on anybody, anywhere, void of any oversight, controls, or regulations. In some regards, one could easily argue he had been doing it for six years and had no intentions of changing, so what difference did it really make. A terrible argument, but unfortunately realistic.
The PAA superceded FISA’s specifications and regulations, therefore, what is actually being addressed today via the RESTORE Act are the provisions of the PAA. Consequently, the matrix below provides a comparison between the current law, PAA, and the proposed legislation, the RESTORE Act.
The RESTORE Act (HR 3773) vs. the PAA
| RESTORE Act of 2007 | Protect America Act |
| Prohibits warrantless surveillance of Americans. Requires a Court Order before targeting Americans’ phone calls or email. | Contains language that could authorize warrantless surveillance of Americans’ homes, offices, medical records, and phone records. |
| Requires an individual finding of probable cause before conducting surveillance on Americans who are abroad (soldiers, travelers, etc.). | Permits warrantless electronic surveillance of Americans abroad without probable cause. |
| Clarifies that no Court Order is required for surveillance of conversations where both ends are foreign. | Does not address this issue. |
| Grants the Attorney General and Director of National Intelligence authority to apply to the FISA Court for an order authorizing electronic surveillance of multiple foreign targets. The FISA Court must review the guidelines and procedures for this surveillance. | FISA Court’s review of procedures is only after-the-fact. FISA Court is relegated to a “rubber stamp” because it may only overturn the surveillance procedures if they are “clearly erroneous.” |
| FISA Court must approve minimization procedures. | No FISA Court review of minimization procedures allowed. |
| Mandates quarterly audits by the Justice Department Inspector General (DOJ IG) on communications collected under this authority and the number of U.S. persons identified in intelligence reports disseminated pursuant to this collection. These audits would be provided to the FISA Court and to Congress (Intelligence and Judiciary Committees). Mandates an IG audit of non-compliance by intelligence agencies.
Mandates an IG audit of non-compliance by intelligence agencies. Requires the DOJ IG to conduct an audit of the Administration’s warrantless surveillance programs – to include providing authorizations and legal memoranda to Congress. |
Only authorizes an audit of non-compliance by intelligence agencies. |
| Authorizes the FISA Court, at its discretion, to review applications and other matters as a panel (en banc). | No provision for en banc review |
| Requires the government to submit applications before conducting surveillance (but provides for surveillance to begin immediately in an emergency). | Allows the government to conduct surveillance for 120 days before procedures must be filed with the FISA Court. |
| Narrows the scope of this new authority to allow surveillance on terrorism and other threats to national security. | Allows warrantless surveillance to collect any type of intelligence, to include information about trade negotiations. |
| Requires the government to establish a record-keeping system to track instances where information identifying U.S. persons is disseminated. | No such record keeping required. |
On a side note, last night, or probably better stated, early this morning, I fired off a letter about the proposed FISA changes to my respective Members of Congress. In addition to blasting the Bush-Cheney administration for its relentless lawbreaking, I believe I made it clear that I was not pleased with the attitude Congress is assuming with this bill in particular, as well as their overall complacent posture. That’s a bit ironic isn’t it? What kind of posture do invertebrates have? Well, at minimum we know they can’t qualify for biped status.
If you have not contacted your Senators or Representative about this issue (and hopefully others), and don’t have time to compose a personal letter, you are welcome to use mine as a template. Of course, the “template” is complete — all the hyperbole, over-the-top rhetoric, and requisite derriere-kissing a wingnut could possibly need.
The letter I have provided is addressed to a Representative, which can easily be modified slightly to accommodate Senators.
Download the letter here (pdf).
In today’s press briefing, White House Press Secretary Dana Perino gave about as lame excuse as could possibly be given on why President Bush will veto the State Children’s Health Insurance Program (SCHIP). Perino said the bill Congress passed 67-29, did not provide for the neediest children, which to the best of my knowledge is inaccurate. Congress expanded the existing bill instead rather than reducing benefits currently provided.
As evidenced in the video, Perino’s spin is more of a “suffer the little children to come unto Me, and forbid them not” speech.
I have to wonder if Bush is somehow floating a trial balloon with this veto; a test run to determine how much control he has over his staunchest supporters. The closer it gets to election day, the greater the risk of defections by GOP members from the administration’s policies on Iraq and Iran. Although the issues are not remotely related, if he is successful here, the chances of Congress overriding his vetoes on future foreign policy matters will certainly be much less.
HEADLINES
WASHINGTON
CONGRESS
IRAQ
NATION
WORLD
The Senate just passed expansion of the State Children’s Health Insurance Program (SCHIP) in a 69-30 vote. President Bush has promised to veto the bill, however the 69 votes exceed the number of votes required to override a presidential veto (assuming no votes change after the veto).
The Senate passed 60-39 a cloture vote on the expansion of the federal hate crime law.
The Senate passed a resolution today 75-23 endorsing Joe Biden’s (D-DE) plan to establish a loose federal government in Iraq, which would divide the country into three semi-autonomous sectarian regions. Obviously it is not binding because Congress cannot dictate legislation to a sovereign country and is scared to death to defy the president’s wishes.
The Washington Post claims “it represents a significant milestone in the Iraq debate, carving out common ground in a debate that has grown increasingly polarized and focused on military strategy.” That’s a bunch of crap. A significant milestone must be actionable, not just a “feel good” moment.
Why waste the time on do-nothing, toothless legislation? Harry Reid and Mitch McConnell could have gotten a staffer to draft a letter to George Bush, saying “pretty please,” signed it, dropped it in the mail, and achieved the same results.
The Senate is considering a bill to provide limited protection to journalists (i.e., shield law), which if passed could have substantial consequences. After the Nixon administration, Watergate, and more than six years of the Bush-Cheney administration, it would be hard to argue the importance and significance of the press, and thereby the necessity of protection. However, the mere act of implementing a federal shield law provides definition and scope, which, depending on the circumstances, can be both an asset and a liability.
Although the evolution of the press has created a substantially different medium than the Founding Fathers could have possibly envisioned, they viewed the press as the only available source to provide the critical two-way communications between the People and the Republic, as well as independent oversight. The Founding Fathers accurately and rightfully believed Democracy could not survive if two-way communications did not exist. Hence, the press has historically and justifiably been deemed the Fourth Estate.
Many people disagree to what extent the First Amendment protects the press, especially in the area of confidential sources. The contemporary debate is surely derived from the 1972 Supreme Court decision in Branzburg v. Hayes (summary, detail)and subsequently heightened when New York Times reporter Judith Miller was jailed in 2005 for refusing to reveal confidential sources (viz. Scooter Libby) in the CIA leak case. In Branzburg v. Hayes, the Court ruled the press “is not without First Amendment protections,” but could not agree “about the forms or depths of those protections.”
Although, shield laws exist in 49 states, there are no federal shield laws to protect national reporters, which raises the question, what is applicable to the New York Times reporter, for example, covering a Washington based story, and is predicated upon sources residing in Mobile, Alabama? Obviously protection at the federal level is needed.
I believe it is safe to assume the recent CIA leak case is one of the primary motivators of the Senate’s decision to debate implementing a shield law. It also serves as a good example to demonstrate the liabilities and assets of such laws.
The CIA leak case was based on the illegal outing of CIA agent Valerie Wilson, an operative at the time working in the WMD counter-proliferation division, by Dick Cheney, Scooter Libby, and Karl Rove. Briefly summarizing, Judith Miller, a New York Times reporter at the time, was jailed for contempt of court because she refused to reveal sources related to the case. After serving 89 days in prison, Miller finally acquiesced to the demands of the court and revealed her sources. Another key reporter in the case, Matthew Cooper of Time magazine, was spared imprisonment when he reached an agreement with prosecutors at the last minute.
Although Scooter Libby did a grand job of protecting Dick Cheney by obstructing justice and lying to the Grand Jury about the case, Libby would have never been convicted of his crimes if reporters had not been compelled to reveal their confidential information. On the other hand, there is no way of determining how many people will refuse to provide reporters information in the future, for whatever the situation may be, out of fear they may be revealed because reporters may be compelled by the courts, or limitations of law in the future, to reveal their sources.
In contrast to the CIA leak case, on December 16, 2005, New York Times reporters James Risen and Eric Lichtblau revealed George Bush’s widespread warrantless eavesdropping program - the countless violations of the Foreign Intelligence Surveillance Act. No one can possibly argue that this information would have been revealed in something less than decades later if reporters had been required to reveal confidential source information. Although President Bush declared it a violation of national security and immediately initiated a Justice Department investigation for the public revelation of his crimes, no reporter has released, at least publicly, their sources of information. One can only imagine to what extent President Bush will carry out retribution if the source(s) is ever revealed.
It almost goes without saying, any Bush-Cheney-Nixon like-minded person(s) in power will twist and distort any shield law that may be in place to use as retribution against their critics and whistle-blowers. The importance of Congress carefully implementing shield laws cannot possibly be overstated.
