Month: April 2006

A reader writes:

"I agree with you on the debater’s point, but only if the President actually declassified something. I don’t know the law of declassification, and maybe it allows the President to declassify orally. But, if the President declassifies something, isn’t it then available to the public? Were the leaked/disclosed portions of the NIE then provided to everyone who wanted them and had asked for them? I don’t know. But if they were not, then it would seem to me that the information is still classified, and the leak is a leak, not a disclosure."

That strikes me as a good point. Maybe someone can help us out on the formal legal/administrative details of declassification. If the president formally declassified the NIE, then we should all have been able to read all of it, simultaneously, right? And that’s what ultimately happened. And when we did, we saw that some government agencies disputed the president’s account on aluminum tubes. But before that, the president picked a few items to declassify – items that clearly misled the public – and told underlings to give them to selected members of the press. I think that’s a fair ethical description of a leak. At the very least, it’s a clear intent to mislead, by selectively releasing evidence. And if he deliberately misled the people after the war on intelligence, doesn’t that imply he was fully capable of doing so beforehand? This is not a matter of law ultimately. It’s a matter of character and honor. And it’s not a pretty perspective on this president. McClellan, by the way, flailed about this morning – and the transcript is here.

New data on the TimesSelect gambit: Not one TimesSelect column made the most e-mailed over the last 30 days.

Reihan Salam thinks the Massachusetts healthcare plan is a big boost to Mitt Romney’s presidential prospects. Joe Klein, another columnist for my corporate overlords, saw it coming; and likes it a lot. Joe jokes that he and I belong to the same political party. Pity it doesn’t exist.

"We do have full confidence in the Iraqi people to stay calm and to face the terrorism always and not to be led by them. The Iraqi people always lived together hundreds of years – different components – Arabs, Kurds and the Shiites. They’ve got strong ties and relations between them. They are stronger than the terrorist groups and the remnants of the regime," – Haitham al-Husseini, a spokesman for the Supreme Council for the Islamic Revolution in Iraq. He said that after an attack on a Shiite mosque that killed at least 70 people and injured well over 100.

The attorney-general, Alberto Gonzales, has already said he believes that the president has the constitutional right to overturn laws against torture, under his powers as commander-in-chief. He also believes that the president has the power to order warrantless wire-taps of phones from or to abroad if it’s necessary for national security, violating the law. Now, we find out that Gonzales also believes that the president has the constitutional authority to wiretap purely domestic calls without a warrant. Money quote:

"In response to a question from Rep. Adam Schiff (D-Calif.) during an appearance before the House Judiciary Committee, Gonzales suggested that the administration could decide it was legal to listen in on a domestic call without supervision if it were related to al-Qaeda. "I’m not going to rule it out," Gonzales said. In the past, Gonzales and other officials refused to say whether they had the legal authority to conduct warrantless eavesdropping on domestic calls, and have stressed that the NSA eavesdropping program is focused only on international communications."

This is how they take your freedom away one sliver at a time. It’s important to remember that this comes from the attorney-general. The person who is supposed to represent citizens and retain some independence from the executive branch is an eager ally of the executive in its deeper and deeper incursions into basic civil liberties. For Gonzales, the president is an elected monarch. And we are his subjects.

The question before the House, as it were, is not a legal one, it seems to me. The question is an ethical one. The president cannot, technically speaking, "leak" classified information for the simple reason that if the president decides to declassify it, it’s no longer "classified," and therefore becomes not a "leak" but a "disclosure." As a debater’s point, this is pretty damn airtight. But it’s also a little disturbing. Let’s say a president has a political beef against a covert CIA agent. And let’s say he outs that agent for political purposes. I’m not saying we have hard evidence this has happened in the Plame case – we don’t at all – but let’s posit such a hypothetical case. Legally, the president’s in the clear. Constitutionally, he’s in the clear. But ethically: surely not. In fact, ethically, it seems to me, he would be acting in a way that could well lead to Congressional censure or even impeachment. You don’t treat spies’ cover as tools for your Beltway push-back.

That’s not what we know in this case. In this case, we’re merely talking about the following set of circumstances. A president is challenged in his public account of pre-war intelligence. The president authorizes a selective leak of classified information to rebut the challenge. He selects only those parts of the classified information that supports his case, and omits the rest that actually show parts of the government disputing his case. He authorizes the veep to authorize Libby to give the selected information to a pliant reporter for the New York Times. Meanwhile, his public statements reiterate an abhorrence of all unauthorized disclosure of classified information.

This is an interesting insight into the president’s character. It simply shows his willingness to use the prerorgatives of his office as the guardian of our national security to play political hardball against opponents. It shows a conscious capacity to mislead people by selectively disclosing data that skews – for a while – the public’s understanding of the facts. It proves that this president is capable of deliberately misleading the American people as a gambit in a Beltway spat, or even just to keep ahead of the news cycle. It wasn’t Karl Rove’s dirty tricks or David Addington’s Schmittian ideology or Dick Cheney’s "dark side" here. It’s George W. Bush – hard-assed political fighter, micro-managing press coverage of a minor matter, using the privileges of his constitutional position as commander-in-chief to play Washington hardball at a time of war. This is what we know. And it helps round out the picture of who this man is, doesn’t it?

(Photo: Kevin Dietsch / UPI / Landov)

"We Christians … are rejoicing over what God has done – and we’ve found out that it’s true that when the church of Jesus Christ arrives at the gates of hell, the gates of hell cannot prevail against it," – Flip Benham, president of "Operation Save America," a Christianist group, in North Carolina. Their triumph? They claim to have gotten a local gay pride parade canceled.

"There’s a lot of leaking in Washington, D.C. It’s a town famous for it. This investigation in finding the truth, it will not only hold someone to account who should not have leaked ‚Äî and this is a serious charge, by the way. We’re talking about a criminal action, but also hopefully will help set a clear signal we expect other leaks to stop, as well. And so I look forward to finding the truth," – President George W. Bush, October 7, 2003.

"Q: But can you confirm that the President would fire anyone on his staff found to have leaked classified information?

McClellan: I think I made that very clear last week. The topic came up, and I said that if anyone in this administration was responsible for the leaking of classified information, they would no longer work in this administration." – White House press conference, October 6, 2003.

The president’s self-defense at this point must be that if he, the president, decides to leak classified information, like the NIE assessment, then, by definition, it isn’t a classified leak. POTUS gets to decide what is and isn’t classified. And so he cannot commit the wrong or crime he decries in others. He can break no secrets because the secrets are his to break. He is above the law because, in terms of executive privilege, he is the law.

Thanks for the emails. A couple of other points. I don’t see this is as a "big government" proposal, because the government won’t be running hospitals or providing insurance. It’s just mandating that everyone get an insurance policy. Is it a function of "big government" to mandate getting a driver’s license? I like the Massachusetts plan precisely because it avoids big government, while dealing with public goods. It’s also a practical, incremental plan, based on existing arrangements, but expanding and developing them – quintessentially conservative, in the Oakeshottian sense. It’s not a product of a rationalist, Ira Magaziner think-tank master-study, foisted on the unsuspecting world by High Priestess Rodham.

I also like the fact that it’s a consequence of one state, dealing with its own issues. Funny how the best reforms come from the states, isn’t it, by people who know their own communities better than anyone else? The current GOP is anti-federalist, because it’s become a religious party, and such a party naturally resists devolving power to states that may be more secular than Tom DeLay’s version of God would like. But conservatism in the old sense was not afraid for Massachusetts and Alabama and California to try out different solutions, because conservatism in the pre-Bush years was not a primarily religious force. The good news is we’ll find out in due course how this works in one place before others take it up. I’m also struck that this plan is a product of divided government. In the 1990s, national divided government gave us welfare reform and a balanced budget. Subsequently, one party government has given us massive debt, immense corruption, and a huge expansion in federal power. There’s a lesson here. And it’s: "Vote Democrat This November." Unless, of course, your specific Democratic candidate is intolerably bad, or your existing Republican is extremely good.

Update: More useful commentary here.

In one word: genius. In two: Surrender, Viacom!