When the Vice President Does It, That Means It’s Not Illegal

By FRANK RICH

WHO knew that mocking the Constitution could be nearly as funny as shooting a hunting buddy in the face? Among other comic dividends, Dick Cheney's legal theory that the vice president is not part of the executive branch yielded a priceless weeklong series on "The Daily Show" and an online "Doonesbury Poll," conducted at Slate, to name Mr. Cheney's indeterminate branch of government.

The ridicule was so widespread that finally even this White House had to blink. By midweek, it had abandoned that particularly ludicrous argument, if not its spurious larger claim that Mr. Cheney gets a free pass to ignore rules regulating federal officials' handling of government secrets.

That retreat might allow us to mark the end of this installment of the Bush-Cheney Follies but for one nagging problem: Not for the first time in the history of this administration — or the hundredth — has the real story been lost amid the Washington kerfuffle. Once the laughter subsides and you look deeper into the narrative leading up to the punch line, you can unearth a buried White House plot that is more damning than the official scandal. This plot once again snakes back to the sinister origins of the Iraq war, to the Valerie Wilson leak case and to the press failures that enabled the administration to abuse truth and the law for too long.

One journalist who hasn't failed is Mark Silva of The Chicago Tribune. He first reported more than a year ago, in May 2006, the essentials of the "news" at the heart of the recent Cheney ruckus. Mr. Silva found that the vice president was not filing required reports on his office's use of classified documents because he asserted that his role in the legislative branch, as president of the Senate, gave him an exemption.

This scoop went unnoticed by nearly everybody. It would still be forgotten today had not Henry Waxman, the dogged House inquisitor, called out Mr. Cheney 10 days ago, detailing still more egregious examples of the vice president's flouting of the law, including his effort to shut down an oversight agency in charge of policing him. The congressman's brief set off the firestorm that launched a thousand late-night gags.

That's all to the public good, but hiding in plain sight was the little-noted content of the Bush executive order that Mr. Cheney is accused of violating. On close examination, this obscure 2003 document, thrust into the light only because the vice president so blatantly defied it, turns out to be yet another piece of self-incriminating evidence illuminating the White House's guilt in ginning up its false case for war.

The tale of the document begins in August 2001, when the Bush administration initiated a review of the previous executive order on classified materials signed by Bill Clinton in 1995. The Clinton order had been acclaimed in its day as a victory for transparency because it mandated the automatic declassification of most government files after 25 years.

It was predictable that the obsessively secretive Bush team would undermine the Clinton order. What was once a measure to make government more open would be redrawn to do the opposite. And sure enough, when the White House finally released its revised version, the scant news coverage focused on how the new rules postponed the Clinton deadline for automatic declassification and tightened secrecy so much that previously declassified documents could be reclassified.

But few noticed another change inserted five times in the revised text: every provision that gave powers to the president over classified documents was amended to give the identical powers to the vice president. This unprecedented increase in vice-presidential clout, though spelled out in black and white, went virtually unremarked in contemporary news accounts.

Given all the other unprecedented prerogatives that President Bush has handed his vice president, this one might seem to be just more of the same. But both the timing of the executive order and the subsequent use Mr. Cheney would make of it reveal its special importance in the games that the White House played with prewar intelligence.

The obvious juncture for Mr. Bush to bestow these new powers on his vice president, you might expect, would have been soon after 9/11, especially since the review process on the Clinton order started a month earlier and could be expedited, as so much other governmental machinery was, to meet the urgent national-security crisis. Yet the new executive order languished for another 18 months, only to be published and signed with no fanfare on March 25, 2003, a week after the invasion of Iraq began.

Why then? It was throughout March, both on the eve of the war and right after "Shock and Awe," that the White House's most urgent case for Iraq's imminent threat began to unravel. That case had been built around the scariest of Saddam's supposed W.M.D., the nuclear weapons that could engulf America in mushroom clouds, and the White House had pushed it relentlessly, despite a lack of evidence. On "Meet the Press" on March 16, Mr. Cheney pressed that doomsday button one more time: "We believe he has, in fact, reconstituted nuclear weapons." But even as the vice president spoke, such claims were at last being strenuously challenged in public.

Nine days earlier Mohamed ElBaradei of the International Atomic Energy Agency had announced that documents supposedly attesting to Saddam's attempt to secure uranium in Niger were "not authentic." A then-obscure retired diplomat, Joseph Wilson, piped in on CNN, calling the case "outrageous."

Soon both Senator Jay Rockefeller of West Virginia and Congressman Waxman wrote letters (to the F.B.I. and the president, respectively) questioning whether we were going to war because of what Mr. Waxman labeled "a hoax." And this wasn't the only administration use of intelligence that was under increasing scrutiny. The newly formed 9/11 commission set its first open hearings for March 31 and requested some half-million documents, including those pertaining to what the White House knew about Al Qaeda's threat during the summer of 2001.

The new executive order that Mr. Bush signed on March 25 was ingenious. By giving Mr. Cheney the same classification powers he had, Mr. Bush gave his vice president a free hand to wield a clandestine weapon: he could use leaks to punish administration critics.

That weapon would be employed less than four months later. Under Mr. Bush's direction, Mr. Cheney deputized Scooter Libby to leak highly selective and misleading portions of a 2002 National Intelligence Estimate on Iraq to pet reporters as he tried to discredit Mr. Wilson. By then, Mr. Wilson had emerged as the most vocal former government official accusing the White House of not telling the truth before the war.

Because of the Patrick Fitzgerald investigation, we would learn three years later about the offensive conducted by Mr. Libby on behalf of Mr. Cheney and Mr. Bush. That revelation prompted the vice president to acknowledge his enhanced powers in an unguarded moment in a February 2006 interview with Brit Hume of Fox News. Asked by Mr. Hume with some incredulity if "a vice president has the authority to declassify information," Mr. Cheney replied, "There is an executive order to that effect." He was referring to the order of March 2003.

Even now, few have made the connection between this month's Cheney flap and the larger scandal. That larger scandal is to be found in what the vice president did legally under the executive order early on rather than in his more recent rejection of its oversight rules.

Timing really is everything. By March 2003, this White House knew its hype of Saddam's nonexistent nuclear arsenal was in grave danger of being exposed. The order allowed Mr. Bush to keep his own fingerprints off the nitty-gritty of any jihad against whistle-blowers by giving Mr. Cheney the authority to pick his own shots and handle the specifics. The president could have plausible deniability and was free to deliver non-denial denials like "If there is a leak out of my administration, I want to know who it is." Mr. Cheney in turn could delegate the actual dirty work to Mr. Libby, who obstructed justice to help throw a smoke screen over the vice president's own role in the effort to destroy Mr. Wilson.

Last week The Washington Post ran a first-rate investigative series on the entire Cheney vice presidency. Readers posting comments were largely enthusiastic, but a few griped. "Six and a half years too late," said one. "Four years late and billions of dollars short," said another. Such complaints reflect the bitter legacy of much of the Washington press's failure to penetrate the hyping of prewar intelligence and, later, the import of the Fitzgerald investigation.

We're still playing catch-up. In a week in which the C.I.A. belatedly released severely censored secrets about agency scandals dating back a half-century, you have to wonder what else was done behind the shield of an executive order signed just after the Ides of March four years ago. Another half-century could pass before Americans learn the full story of the secrets buried by Mr. Cheney and his boss to cover up their deceitful path to war.

What Is This Thing Called Private Equity?

By BEN STEIN

UPON what meat doth this our Caesar feed, that he is grown so great?”

I’ve been thinking about those words in the context of private equity lately. How does this business make so much money? Are there really a huge number of mispriced securities out there? Are there really a vast number of corporations whose stock is wildly underpriced so that private equity can buy them at above-market prices and then make money after a little spiffing up and wiping clean?

Maybe so, but this defies the basis of the whole theory of efficient markets. (Of course, much of the whole finance industry is based on denying and defying that extremely interesting and invaluable theory.)

Or maybe it’s that the deals are often done with the help of the acquired entity, where the managers know exactly how to change the company and make it worth more, but want to put that knowledge to work only if they can reap immense rewards from the repair job. That often seems to be what’s happening.

Or is it all sleight of hand and smoke and mirrors? Many years ago, when I was a child, a man who owned a local bus company in Washington told me something memorable. There is no easier way to big money, he told me, than to buy a public company, take it private for a while, then do some accounting tricks with reserves and allowances, make it look profitable and resell it to the public for a big profit. Is this what’s going on here? Accounting is, after all, an art and not a science at the highest levels.

Or is it that once the owners control the target company, they can sell junk bonds and pay themselves immense dividends and fees so they are cashed out with a profit even before they start to reorganize the company? Or is it a combination of all these things?

Maybe there is some degree of inefficiency in the markets, and eagle-eyed smarty-pants types can find companies and make money when they reorganize them or just hold them. (Actually, it’s more than “maybe.” There definitely is, or else my pal Phil DeMuth and I would not be able to get the fabulous returns we have been getting since 2003 from our general investing. Some stocks and some indexes really are mispriced.) This, after all, is how Warren E. Buffett became so rich, and completely honestly.

However it’s happening, it is making some lucky people very rich. That’s fine by me. I like for rich people to endow hospitals and art museums and symphonies.

Now, however, comes word that in many cases, the principals of these private equity firms are using a ploy to avoid paying ordinary earned income tax rates of about 35 percent. They contend that their pay is really a “carried interest” in a series of capital gains and therefore taxable only at capital gains rates. That comes in at 15 percent.

This whole subject was set off by the harrumphing around the Fortress Investment Group and the Blackstone Group, both of which went public recently. It was revealed that the principals at those firms are not only fabulously well paid, but pay little tax on that pay. (They also use partnership and foreign registration tax gimmicks to lower their taxable pay in some instances.) The Democrats in Congress are incensed about this. They want to change the code so that ordinary income tax rates apply to private equity firms. It makes sense to me if, in fact, the income is not from unusual, sporadic deals, but rather from a regular series of processes that approximate the normal carrying-on of a business. After all, the powers at big investment banks like Goldman Sachs basically make much of their money the same way the people at Fortress did. Why should one group get such an immense tax advantage over the other?

Perhaps more to the point, the government needs money for the military and other good purposes. Why not get it from those who have more of it than they know what to do with? What possible difference can it make to Stephen A. Schwarzman, the chief executive of Blackstone, if he makes $400 million a year or, say, $350 million? He would still be able to have big parties, and he would still be able to endow a hospital. As long as similar situations are taxed similarly, why not tax the big private equity boys at the same rate as the guys at Merrill or Credit Suisse?

For some totally inexplicable reason, the G.O.P. in Congress is defending the favored tax treatment of these private equity guys even as they shell out for Hillary Clinton and Barack Obama. But then again, I have had a hard time understanding the G.O.P. for a while now.

I THOUGHT about all of this, and then I thought of something that shook me: I might be wrong. I might be wrong about every part of it. I don’t think I am, or else I would not write it. But I could be wrong. The fact that my words appear in black and white in a major newspaper does not make them automatically true. The fact that I have a lifetime of education and experience in this field does not guarantee that I am always right.

After all, I am just a person. So are all of us who write for newspapers. So are the people at CBS and “Marketplace” and at Fox and at Yahoo. So is everyone. We have grudges we may not even be aware of. We have envy. We have class and religious resentments. We wake up some mornings feeling great and some mornings feeling terrible. We have the myriad influences of childhood, family, friends, environment. These all affect what we write and what we believe. We’re not oracles or vessels of divinity except to the extent that all children of God are.

So, when you read this, please remember: I believe it to be factual and to make sense. But I could be wrong. I was wrong about Iraq. I have often been wrong about investment decisions. I am often wrong in the way I treat people around me.

In this case, there’s something not quite kosher about some private equity dealings, or so it seems to me. There’s something maddening about the way they are taxed or not taxed.

But there would also be something wrong with my assuming that I am always right. I’m not. I’m just a slob on the bus trying to make some sense of the world, just like you.

Tears on My Pillow

By MAUREEN DOWD

“I miss Albania!” W. wails. “They know how to treat a president there. Women were kissing me and men rubbed my hair. The crowd kept yelling, ‘Bushie!,’ and they almost grabbed the watch right off my wrist trying to get at me.”

The concerned group huddling outside the president’s closed-bedroom door in Kennebunkport can barely hear him. His voice is muffled because he has his face buried in his feather pillow, which the Secret Service has carefully transported from Washington to Maine for the weekend, knowing that it would be needed. They guard it so conscientiously that they have even given it a code name. Since the president’s Secret Service name is Tumbler, his agents christened his beloved pillow Slumber.

“Son, I know how you feel,” Poppy calls in to him, trying to sound positive. “Riding high in 2002, shot down in 2007. That’s life, as Sinatra says. You were a puppet and a pawn to King Dick and it screwed up your presidency and our party and the Middle East and the Atlantic alliance and the family legacy and Jeb’s future, not to mention the fate of the planet. But you can’t just roll yourself up in a big ball and die, George. Your friend Vlad the Impaler is here, and I think you should come out and talk to him. You invited him and he came all the way from Russia, and you don’t want to be rude.

“I’ve already taken him to Mabel’s Lobster Claw and out on the boat. He scared all the fish away. I don’t know what else to do with him, George. He brained the Filipino manservant, the little brown one, with a horseshoe.”

Putin steps forward. “Let me try,” he tells Poppy.

“George, hey, it’s me, Ostrich Legs, Pooty Poot. Remember when you gave me those nicknames? Come out, and I show you my real soul. Dark, dark, dark. I put the Putin back in Rasputin. Listen, Albania stinks. Maine much nicer. I saw Moose and Squirrel in the woods. Let’s throw horseshoes at them! I love this American sport.”

Tumbler burrows into Slumber. “Why doesn’t anybody like me anymore, Daddy?” he keens. “Man, I miss Tony. My Iraq poodle left me with a porcupine. And I can’t believe my own Republicans crossed me on the immigration bill. Now my Mexican buddies from Midland are saying, ‘Adiós, Jorge.’ Vice doesn’t even want to be in the same branch of government as me. Where is Dick, by the way?”

His mother steps briskly up to the door. “Now listen, Georgie,” Barbara says. “We didn’t invite Dick. He’s not our kind. He has utterly ruined your presidency. There’s a Washington Post series I want you to read. I’ve put it in the kitchen by your bowl of Cookie Crisps. It explains all about how Dick played you for a fool on everything from Iraq to capital gains. He set up the West Wing paper flow in a way that undermined your goals and advanced his. He let you act like you were the Decider, dear, when you were really just the Dupe.”

W. howls, “Dick promised me I would never be a wimp and now I’m a wimp!”

Putin intervenes. “No, George, don’t blame Dick,” he says. “Dick good man. Shoots friend in face. But Dick too soft. Friend lived. He needs put more people in your Gitmo gulag, shut down newspapers, kill more critics. I’ll send you some of my special polonium-210 pellets. They just like Altoids, curiously strong.”

Clarence Thomas rushes up to the door, black robes flapping. “I got here as fast as I could,” he assures Poppy, before yelling in to W.: “I’m sorry about the Guantánamo decision. I don’t know what my brethren were thinking, applying the Constitution to Cuba. What’s law got to do with it? I should have fought harder. I was a little distracted by our decision to stop race from being a factor in making schools racially diverse. I needed to make sure that black children all over America would have none of the advantages I had.”

Henry Kissinger oils his way across the floor. “Mr. President,” he rumbles through the door, “it’s not so bad bungling a war. I got to date Jill St. John.”

Condi joins the group, and wrinkles her nose at Putin. He puts his arm around her and gives her head a noogie. “When I said U.S. aggression is like Third Reich,” he tells her, with his most charming K.G.B. smile, “I meant it in a good way.”

Condi ignores him and coos to W.: “There’s bad news and good news, sir. Or maybe it’s Vice versa. Cheney’s going to pardon Scooter. And the Albanians have agreed to put your presidential library in Tirana.”

The Break-In That History Forgot

By EGIL KROGH

Seattle

THE Watergate break-in, described by Ron Ziegler, then the White House press secretary, as a “third-rate burglary,” passes its 35th anniversary this month. The common public perception is that Watergate was the principal cause of President Nixon’s downfall. In fact, the seminal cause was a first-rate criminal conspiracy and break-in almost 10 months earlier that led inexorably to Watergate and its subsequent cover-up.

In early August 1971, I attended a secret meeting in Room 16, a hideaway office in the basement of the Old Executive Office Building, across the street from the White House. Huddled around the table were G. Gordon Liddy, a former F.B.I. agent; E. Howard Hunt, a former C.I.A. agent; and David R. Young Jr., a member of the National Security Council staff. I was deputy assistant to the president.

Two months earlier, The New York Times had published the classified Pentagon Papers, which had been provided by Daniel Ellsberg. President Nixon had told me he viewed the leak as a matter of critical importance to national security. He ordered me and the others, a group that would come to be called the “plumbers,” to find out how the leak had happened and keep it from happening again.

Mr. Hunt urged us to carry out a “covert operation” to get a “mother lode” of information about Mr. Ells-berg’s mental state, to discredit him, by breaking into the office of his psychiatrist, Dr. Lewis Fielding. Mr. Liddy told us the F.B.I. had frequently carried out such covert operations — a euphemism for burglaries — in national security investigations, that he had even done some himself.

I listened intently. At no time did I or anyone else there question whether the operation was necessary, legal or moral. Convinced that we were responding legitimately to a national security crisis, we focused instead on the operational details: who would do what, when and where.

Mr. Young and I sent a memo to John Ehrlichman, assistant to the president, recommending that “a covert operation be undertaken to examine all of the medical files still held by Ellsberg’s psychiatrist.” Mr. Ehrlichman approved the plan, noting in longhand on the memo, “if done under your assurance that it is not traceable.”

On Sept. 3, 1971, burglars broke into Dr. Fielding’s Beverly Hills office to photograph the files, but found nothing related to Mr. Ellsberg.

The premise of our action was the strongly held view within certain precincts of the White House that the president and those functioning on his behalf could carry out illegal acts with impunity if they were convinced that the nation’s security demanded it. As President Nixon himself said to David Frost during an interview six years later, “When the president does it, that means it is not illegal.” To this day the implications of this statement are staggering.

With the Fielding break-in, some of us in the Nixon White House crossed the Rubicon into the realm of lawbreakers. In November 1973, I pleaded guilty to criminal conspiracy in depriving Dr. Fielding of his civil rights, specifically his constitutional right to be free from an unwarranted search. I no longer believed that national security could justify my conduct. At my sentencing, I explained that national security is “subject to a wide range of definitions, a factor that makes all the more essential a painstaking approach to the definition of national security in any given instance.”

Judge Gerhard Gesell gave me the first prison sentence of any member of the president’s staff: two to six years, of which I served four and a half months.

I finally realized that what had gone wrong in the Nixon White House was a meltdown in personal integrity. Without it, we failed to understand the constitutional limits on presidential power and comply with statutory law.

In early 2001, after President Bush was inaugurated, I sent the new White House staff a memo explaining the importance of never losing their personal integrity. In a section addressed specifically to the White House lawyers, I said that integrity required them to constantly ask, is it legal? And I recommended that they rely on well-established legal precedent and not some hazy, loose notion of what phrases like “national security” and “commander in chief” could be tortured into meaning. I wonder if they received my message.

Egil Krogh, a lawyer, is the author of the forthcoming “Integrity: Good People, Bad Choices and Life Lessons From the White House.”

Making enemies in low places

Leonard Pitts - Miami Herald


So, what’s going on with you? Nothing much? Wish I could say the same.

As you may know if you’ve seen CNN or read the paper, yours truly has lately been the target of death threats and harassment from the ranks of the not-so-tightlywrapped.

This, after a June 3 column about the torture murder of a young white couple, allegedly by four blacks. My column took on white supremacists and far-right bloggers who contend that this “genocide” — their word — goes unremarked by news media too PC to report black-on-white crime.

It was an argument made for ridiculing and I did my best, pointing out that black-on-white crime, a relative statistical rarity, is not underreported but, in fact, OVER reported, according to any number of studies and experts. This offended a self-professed neo- Nazi leader whose name you won’t read here. So he got on his little neo-Nutsy Web site and posted my home address

and phone number. It’s been game on ever since — 400 e-mails, dozens of phone calls, leaflets on my neighbor’s driveway.

“You should be back in a damn mud and dung hut you nappy headed ho.” . . . “Who’s crying now, you affirmative action ape?” etc.

The gist of this outburst: a handful of contentions, each more asinine than the last:

(1) Pitts has no compassion for the victims. (I called the murders brutal and a tragedy and said the killers should rot under the jailhouse.)

(2) Pitts told those mourning the murders to “cry me a river.” (I gave that advice specifically to white supremacists yelling genocide and other stupid things.)

(3) The murders were so heinous they were “obviously” a hate crime. (Actually, heinousness has nothing to do with it. Hate crime penalties come into play when the prosecutor can establish racial or religious bias as a motive, period.) It turns out this tactic — publishing private information for intimidation purposes — is one these folks use frequently to silence those with whom they disagree. Which only deepens my appreciation for the sheer guts it took to be a Fred Shuttlesworth in Birmingham or a Medgar Evers in Jackson, speaking truth to power in a time and place where everyone knew your address, assassinations were common and you could not go to law enforcement because they were part of the problem.

I’m not comparing myself to those civil

rights icons. I am saying that like them, we shall not be moved.

I pity the neo-Nutsies. How impotent they must feel. How small. So they console themselves with these delusions of inherent superiority.

I grew up in the slums of L.A. and started college at 15. I won the Pulitzer Prize in 2004, and have been married to the same woman for 26 years. I’m also nice to children and play a mean game of Scrabble. So I wonder: What have these people achieved in THEIR lives that makes them my better? Do they really think it’s enough to have less melanin in their skin?

The neo-Nutsies have been responsible for frustration and anger these last days. They’ve also been responsible for joy. Thanks to them, I’ve received a tidal wave of “hang in there” and “we care about you” and “what can we do to help” from colleagues, readers, friends and strangers all over the country. People have volunteered to guard my front door. A self-described “big ole white guy” I’ve interviewed a couple times called from Louisiana to say he had my back. Contributions have been made in my name to the Southern Poverty Law Center. Credit the Nutsies for that.

I feel a little like Jimmy Stewart in “It’s a Wonderful Life.” They say you can tell who a man is by looking at his friends. Which is true. But I believe you can also tell by looking at his enemies. Apparently, I have managed to make enemies of haters, bigots and other low, pathetic men. I must be doing something right.

When Is Enough Enough?

By BOB HERBERT

Chances are you didn’t hear it, but on Thursday night Senator Hillary Clinton said, “If H.I.V./AIDS were the leading cause of death of white women between the ages of 25 and 34, there would be an outraged outcry in this country.”

Her comment came on the same day that a malevolent majority on the U.S. Supreme Court threw a brick through the window of voluntary school integration efforts.

There comes a time when people are supposed to get angry. The rights and interests of black people in the U.S. have been under assault for the longest time, and in the absence of an effective counterforce, that assault has only grown more brutal.

Have you looked at the public schools lately? Have you looked at the prisons? Have you looked at the legions of unemployed blacks roaming the neighborhoods of big cities across the country? These jobless African-Americans, so many of them men, are so marginal in the view of the wider society, so insignificant, so invisible, they aren’t even counted in the government’s official jobless statistics.

And now this new majority on the Supreme Court seems committed to a legal trajectory that would hurl blacks back to the bad old days of the Jim Crow era.

Where’s the outcry? Where’s the line in the sand that the prejudiced portion of the population is not allowed to cross?

Mrs. Clinton’s comment was made at a forum of Democratic presidential candidates at Howard University that was put together by Tavis Smiley, the radio and television personality, and broadcast nationally by PBS. The idea was to focus on issues of particular concern to African-Americans.

It’s discouraging that some of the biggest issues confronting blacks — the spread of AIDS, chronic joblessness and racial discrimination, for example — are not considered mainstream issues.

Senator John Edwards offered a disturbingly bleak but accurate picture of the lives of many young blacks: “When you have young African-American men who are completely convinced that they’re either going to die or go to prison and see absolutely no hope in their lives; when they live in an environment where the people around them don’t earn a decent wage; when they go to schools that are second-class schools compared to the wealthy suburban areas — they don’t see anything getting better.”

The difficult lives and often tragic fates of such young men are not much on the minds of so-called mainstream Americans, or the political and corporate elites who run the country. More noise needs to be made. There’s something very wrong with a passive acceptance of the degraded state in which so many African-Americans continue to live.

Mr. Smiley is also organizing a forum of Republican candidates to be held in September. I wholeheartedly applaud his efforts. But if black people were more angry, and if they could channel that anger into political activism — first and foremost by voting as though their lives and the lives of their children depended on it — there would not be a need to have separate political forums to address their concerns.

If black people could find a way to come together in sky-high turnouts on Election Day, if they showed up at polling booths in numbers close to the maximum possible turnout, if they could set the example for all other Americans about the importance of exercising the franchise, the politicians would not dare to ignore their concerns.

For black people, especially, the current composition of the Supreme Court should be the ultimate lesson in the importance of voting in a presidential election. No branch of the government has been more crucial than the judiciary in securing the rights and improving the lives of blacks over the past five or six decades.

George W. Bush, in a little more than six years, has tilted the court so radically that it is now, like the administration itself, relentlessly hostile to the interests of black people. That never would have happened if blacks had managed significantly more muscular turnouts in the 2000 and 2004 elections. (The war in Iraq would not have happened, either.)

There are, of course, many people, black and white, who are working on a vast array of important issues. But much, much more needs to be done. And blacks, in particular, need to intervene more directly in the public policy matters that concern them.

In the 1960s, there were radicals running around screaming about black power. But the real power in this country has always been the power of the vote. Black Americans have not come close to maximizing that power.

It’s not too late.

How immigrants improve the curve

In the 'clash of civilizations,' newcomers may deserve to come out on top.
Rosa Brooks

June 29, 2007

'THE IMPACT of immigration — legal and illegal — on jobs, schools, healthcare, the environment, national security, are all very serious problems," insists Rep. Tom Tancredo (R-Colo.), a man famed for his extreme anti-immigration views. "But more serious than all of them put together is this threat to the culture. I believe we are in a clash of civilizations." Tancredo's right about that last bit. We are in a clash of civilizations — and someday, immigrant culture may even displace some aspects of American culture.

We'd better hope so.

Americans? We're fat, decadent and getting dumber all the time. Our life expectancy, which rose for most of the last two centuries, is stalling because so many of us are obese. While most of us know everything there is to know about Paris Hilton, we know next to nothing about history, geography, international politics or the workings of our own government.

In American culture, the Xbox reigns supreme among boys, we market thong underwear to prepubescent girls and a growing number of adults think a McMansion with fewer than one bathroom per resident is the height of privation.

Our forebears tamed the West, but today, most of us couldn't tame a paper bag. If we had to cross the country in covered wagons, we'd be dead well before we reached the Mississippi.

Now contrast "our" culture with that of recent immigrants. On all too many measures, immigrants look a whole lot better.

Immigrants exhibit no shortage of pluck. It takes guts to leave your home and everything you know — even if a green card awaits. And when it comes to illegal immigrants, just getting here takes astounding courage. Illegal immigrants endure astonishing privation and risk — just for the chance to improve their lot by doing the backbreaking work so few native-born Americans have the inclination to do. While we demand McMansions, they share cramped apartments. We're up to our ears in consumer debt; they save almost every dollar to send to their less-well-off relatives.

The younger generation of illegal immigrants is particularly impressive. Each year, thousands of unaccompanied children cross into the U.S. without their parents, many literally walking here from villages in El Salvador and Guatemala. Could our sheltered and chaperoned children manage such a trip on their own?

Immigrants tend to be straight arrows too. A 2002 survey by the nonpartisan group Public Agenda found that an overwhelming majority of immigrants believe that they have a duty to "work hard and stay off welfare" and "respect people from different religious and ethnic backgrounds." A Harvard study found that immigrant students also have more positive attitudes toward education than U.S.-born young people.

And contrary to widespread perceptions, immigrants are less likely than non-immigrants to commit crimes. A study in Chicago looking specifically at Mexican immigrants found that "first-generation immigrants (those born outside the United States) … were 45% less likely to commit violence than were third-generation Americans." Harvard sociology professor Robert Sampson suggests that increased immigration may have been a factor in reduced crime rates in the 1990s.

Another study done in New York City found that immigrants looked pretty good across the board. Compared to their native-born peers, for instance, "foreign-born [adolescents] had less asthma, less obesity, fewer school days missed and less involvement in substance use, sex, delinquency and violence." On average, immigrants even live three years longer than the rest of us.

No wonder Tancredo and his supporters are terrified of immigrants!

Immigrants put us to shame. They're healthier, stronger, thriftier and braver. If we can't get them to assimilate, they may well displace us. Thursday's death-by-filibuster of the immigration reform bill — which ended the prospect of a path to citizenship for 12 million undocumented workers — might slow the cultural displacement, but it won't stop it.

Fortunately for us native-born types, most immigrants are willing to overlook our flaws and assimilate. According to the Public Agenda survey, 80% of immigrants consider the U.S. "a unique country that stands for something special in the world," and 87% say it's "extremely important" to "speak and understand English."

But we should pause before we insist that immigrants assimilate. The same studies that show immigrants are healthier and less violent also suggest that the inoculating effects of immigrant status wear off over the years. By the time you get to the grandchildren of immigrants, you can no longer detect much difference.

In other words: Immigrants beware! Assimilation into American culture may be hazardous to your health and your values.

As for the rest of us — instead of insisting that immigrants assimilate to our culture, maybe we should consider assimilating to theirs. It might be the only way to bring back the values of our ancestors — who were, as everyone knows, immigrants themselves.

The Murdoch Factor

By PAUL KRUGMAN

In October 2003, the nonpartisan Program on International Policy Attitudes published a study titled “Misperceptions, the media and the Iraq war.” It found that 60 percent of Americans believed at least one of the following: clear evidence had been found of links between Iraq and Al Qaeda; W.M.D. had been found in Iraq; world public opinion favored the U.S. going to war with Iraq.

The prevalence of these misperceptions, however, depended crucially on where people got their news. Only 23 percent of those who got their information mainly from PBS or NPR believed any of these untrue things, but the number was 80 percent among those relying primarily on Fox News. In particular, two-thirds of Fox devotees believed that the U.S. had “found clear evidence in Iraq that Saddam Hussein was working closely with the Al Qaeda terrorist organization.”

So, does anyone think it’s O.K. if Rupert Murdoch’s News Corporation, which owns Fox News, buys The Wall Street Journal?

The problem with Mr. Murdoch isn’t that he’s a right-wing ideologue. If that were all he was, he’d be much less dangerous. What he is, rather, is an opportunist who exploits a rule-free media environment — one created, in part, by conservative political power — by slanting news coverage to favor whoever he thinks will serve his business interests.

In the United States, that strategy has mainly meant blatant bias in favor of the Bush administration and the Republican Party — but last year Mr. Murdoch covered his bases by hosting a fund-raiser for Hillary Clinton’s Senate re-election campaign.

In Britain, Mr. Murdoch endorsed Tony Blair in 1997 and gave his government favorable coverage, “ensuring,” reports The New York Times, “that the new government would allow him to keep intact his British holdings.”

And in China, Mr. Murdoch’s organizations have taken care not to offend the dictatorship.

Now, Mr. Murdoch’s people rarely make flatly false claims. Instead, they usually convey misinformation through innuendo. During the early months of the Iraq occupation, for example, Fox gave breathless coverage to each report of possible W.M.D.’s, with little or no coverage of the subsequent discovery that it was a false alarm. No wonder, then, that many Fox viewers got the impression that W.M.D.’s had been found.

When all else fails, Mr. Murdoch’s news organizations simply stop covering inconvenient subjects.

Last year, Fox relentlessly pushed claims that the “liberal media” were failing to report the “good news” from Iraq. Once that line became untenable — well, the Project for Excellence in Journalism found that in the first quarter of 2007 daytime programs on Fox News devoted only 6 percent of their time to the Iraq war, compared with 18 percent at MSNBC and 20 percent at CNN.

What took Iraq’s place? Anna Nicole Smith, who received 17 percent of Fox’s daytime coverage.

Defenders of Mr. Murdoch’s bid for The Journal say that we should judge him not by Fox News but by his stewardship of the venerable Times of London, which he acquired in 1981. Indeed, the political bias of The Times is much less blatant than that of Fox News. But a number of former Times employees have said that there was pressure to slant coverage — and everyone I’ve seen quoted defending Mr. Murdoch’s management is still on his payroll.

In any case, do we want to see one of America’s two serious national newspapers in the hands of a man who has done so much to mislead so many? (The Washington Post, for all its influence, is basically a Beltway paper, not a national one. The McClatchy papers, though their Washington bureau’s reporting in the run-up to Iraq put more prestigious news organizations to shame, still don’t have The Journal’s ability to drive national discussion.)

There doesn’t seem to be any legal obstacle to the News Corporation’s bid for The Journal: F.C.C. rules on media ownership are mainly designed to prevent monopoly in local markets, not to safeguard precious national informational assets. Still, public pressure could help avert a Murdoch takeover. Maybe Congress should hold hearings.

If Mr. Murdoch does acquire The Journal, it will be a dark day for America’s news media — and American democracy. If there were any justice in the world, Mr. Murdoch, who did more than anyone in the news business to mislead this country into an unjustified, disastrous war, would be a discredited outcast. Instead, he’s expanding his empire.

David Brooks is off today.

Red State Welfare

By TIMOTHY EGAN
Published: June 28, 2007

Drive across the empty reaches of the Great Plains, from the lost promise of Valentine, Neb., to the shadowless side roads into Sunray, Tex., and what you see is a land that has lost its purpose. Many of the towns set in this infinity of flat have a listless look, with shuttered main streets and schools given over to the grave.

With upwards of $20 billion a year in federal payments going to a select few in farm country, you would think that these troubled counties would have a more vigorous pulse. After all, corn and wheat prices are at record highs, and big manses here and there, with Hummers in limestone driveways, indicate that somebody is doing well.

It would be one thing if the despair and disparity in farm country were the sole products of history, if time had simply passed it all by. But it comes as a jolt to realize that government policy is much to blame.

The Red State welfare program, also known as the farm subsidy system, showers most of its tax dollars on the richest farmers, often people with no dirt under their fingernails, at the expense of everybody else trying to work the land. Like urban welfare before reform, agriculture subsidies reward those who can work the system — farming the government, as they call it around the diner.

And when you dare ask about the farmer in Colorado who received more than $2 million in handouts, or all those absentee landowners collecting their $150,000 government checks in gilded urban ZIP codes, the reaction is: it’s none of your business.

Thus, the American Farm Bureau, which represents some of the biggest corporate welfare recipients, is terrified that a motley mix of peasants are now at the door with pitchforks. On their Web page, the bureau warns members that “forces outside of agriculture” are demanding change. The audacity! The farm bureau’s attitude to the taxpayer is: just write the check and shut up.

Every five years or so Congress drafts a farm bill. The last farm bill was a masterpiece of Soviet-style goals and giveaways signed by that faux-rancher who likes to show off his cowboy boots, President Bush.

This massive piece of legislation could be a blueprint for rural America. But it has become a spoils system where the congressmen-turned-lobbyists make sure that their clients get triple-figure checks for growing things that the nation already has in surplus.

This year, things are different. It’s not their farm bill anymore. It is quickly becoming a food bill, a design for the American diet, possibly the worst in the industrial world. Budget hawks, nutritionists, small farmers and big farmers who grow fruits and vegetables without subsidies, alternative energy advocates and rural renaissance types — all are ready to do battle over the new plan.

The farm bill sets the rules for the American food system and helps to subsidize obesity. It rewards growers of big commodity crops like corn, soybeans and wheat — the foundation of our junk food nation. So, a bag of highly processed orange puff balls with no nutritional value is cheaper than a tomato or a peach. Wonder why.

The reformists, by and large, are not trying to get in on the gravy train. They want to revitalize rural America, to encourage farmers’ markets, contribute to environmental health and to make it easier for poor people to buy fresh fruits and vegetables.

In Congress, Jeff Flake, a maverick Republican from Arizona who angered party leaders by taking on earmarks, and Ron Kind, a Democrat who represents dairy country in Wisconsin, are leading the charge. There is likely to be a huge fight later this summer, because the old guard who protect the farm lobby are embedded deep in the early-stage committees.

Once you step into this stuff, it’s hard to pull away. I worked a summer on a dairy farm, hauling hay, shoveling manure and taking the occasional dead calf out for burial. The farmer lady offered to pay me with a cow or a check; I took the money.

Thanks to the Environmental Working Group, we know exactly how much money every subsidized farmer is getting in every county. The group’s database shows that just 1 percent of all farmers receive about 17 percent of the payments — averaging $377,484 per person, over three years.

That’s a nice handout for these stalwarts of Red State values, prompting two conclusions: the system is broken, and I should have held onto my cow.

Timothy Egan, a former Seattle correspondent for The Times and the author of “The Worst Hard Time,” is a guest columnist.

Rules? For Fools.

By Ruth Marcus

Wednesday, June 27, 2007; A19

Let's admit it: We in the media haven't had this much fun with Vice President Cheney since he shot a man in the face and neglected, for a while, to tell the boss. And let's admit: Like that episode, this one doesn't matter much on its own.

So the vice president's office wouldn't report how many documents it had classified, and it wouldn't let an obscure division of the National Archives look at its security procedures. In bureaucratese, OVP blocked ISOO from conducting an on-site review under Section 5.2 (b)(4) of Executive Order 12958, as amended.

Of all the vice president's excesses, this one barely registers on the Cheney Scale. Its seismic impact, rather, stems from the combination of so many Cheneyesque attributes: mania for secrecy, resistance to oversight, willingness to twist the law and assertion of unreviewable power.

This is Cheney's version of the $400 haircut/I voted for the $87 billion before I voted against it/I invented the Internet -- a moment whose importance is magnified because it fits with jigsaw precision into an existing template. In this case, as the Post series on Cheney has shown, those preconceptions are justified.

As maddening as the vice president's above-the-law attitude is the way he and his staff respond when challenged: first, the silent treatment, then the legal bait and switch. When the Information Security Oversight Office asked Cheney's chief of staff, David S. Addington, why the office had blocked its inspection, Addington didn't deign to reply -- twice. Neither did Attorney General Alberto R. Gonzales, to whom ISOO wrote in January for guidance.

Cheney's initial explanation for his refusal to file ISOO reports -- and this is where the fun we've been having with this story comes in -- rested on his unique status as both vice president and president of the Senate.

"This has been thoroughly reviewed, and it's been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions," a Cheney spokeswoman told the Chicago Tribune in May last year.

This makes no sense -- as the White House's subsequent abandonment (mostly) of this argument suggests. No doubt, the vice president wears two hats. But it's hard to credit the argument that he is not as a result, "within the executive branch," and therefore covered by the executive order.

Indeed, when President Bush rewrote the order in 2003, he granted the vice president explicit authority "in the performance of executive duties" to classify and declassify information. So under Cheney's interpretation he simultaneously gets new executive classification powers but isn't part of the executive in having to report his handling of classified material.

Moreover, when the executive order wanted to exempt the vice president's office from one provision, it did so clearly. The amended order explicitly relieves the vice president's staff from having to comply with a rule letting outsiders seek declassification.

Now, the argument has shifted from that shaky ground to other, equally shaky ones.

First, that the office of the vice president isn't an agency covered by the regulation. "Supreme Court precedent shows that the vice president and the president are not seen as an agency when it comes to executive orders," the battered briefer, Dana Perino, dutifully recited Monday.

She was referring to a 1992 census case, Franklin v. Massachusetts, in which the Supreme Court said that the president was not considered an "agency" for purposes of the Administrative Procedure Act. That might be vaguely relevant if the executive order didn't contain its own, far broader definition of agency ("any other entity within the executive branch that comes into the possession of classified information").

Second, Perino now argues, the president never intended for his office or the vice president's to be covered by the reporting and inspection rules.

The president and vice president, for purposes of this order, she says, are one and the same -- an argument that doesn't quite square with Perino's point, at the same briefing, that "the vice president's paycheck comes from the Senate." And, Perino says, neither is covered by the relevant part of the executive order.

That would be a fine argument, and certainly within the president's power, except that's not what the order says. It's not the way previous administrations have interpreted it -- or how this one did for the first two years, when Cheney's office filed reports about its classification procedures. If the president meant to change that practice when he rewrote the executive order in 2003, he didn't mention it.

In the end, Cheney vs. ISOO is just another example of the Cheney doctrine at work: Never willingly provide information, however innocuous. Never do in public what you can accomplish by stealth. And never make a reasonable argument when an outlandish one is at hand.

W. Learns From Students

By MAUREEN DOWD

WASHINGTON

A group of high school Presidential Scholars visiting the White House on Monday surprised President Bush by slipping him a handwritten letter pleading with him to not let America become known for torture and urging him to stick to the Geneva Conventions with terror detainees.

The president reassured the teenagers that the United States does not torture. Then the vice president unleashed a pack of large dogs on the kids, running them off the White House lawn, before he shut down the Presidential Scholars program and abolished high schools.

Since it’s rare that Mr. Bush ever sees groups that have not been prescreened to be nice to him, he made the mistake of opening the letter in front of the students and was surprised to learn that he has made many Americans ashamed by subverting values that the country has always held dear, like abiding by the Constitution and respecting human dignity.

Mari Oye from Wellesley, Mass., who is headed to Yale in the fall, handed W. the letter signed by 50 students as they posed for a group picture. She told John Roberts on CNN that her mother had been a Presidential Scholar back in 1968 and always regretted not saying something to Lyndon Johnson about the Vietnam War. She also said her grandparents were Japanese-Americans who were interned during World War II, so she has compassion for those “in a similar situation.”

“We asked him to remove the signing statement attached to the anti-torture bill, which would have allowed presidential power to make exemptions to the ban on torture,” she said. “I really feel strongly about this issue and also about the treatment of some Arab- and Muslim-Americans after September 11th.”

The president was trying to talk to the students about No Child Left Behind. Maybe that program’s working better than we thought if these kids are able to pull off such a knowing note left behind.

The White House got another unpleasant surprise Monday when the ordinarily compliant Dick Lugar, the ranking Republican on the Foreign Relations Committee who has gone along with the Bush administration on every Iraq vote, came to the Senate floor to upbraid the president on his Iraq policy in a 50-minute speech.

“Those who offer constructive criticism of the surge strategy are not defeatists, any more than those who warn against a precipitous withdrawal are militarists,” the 75-year-old senator told the deserted chamber.

Another Republican on the committee, George Voinovich, sent a letter to the president yesterday, suggesting it’s time to start pulling troops out. “My heart has been heavy for a long time,” he told Jeff Zeleny of The Times. “We’re talking $620 billion. We’re talking over 3,500 people killed.” He said he keeps a photo of an Ohio Marine killed in Iraq on his desk “so I don’t forget, O.K.?” Mr. Lugar said the ’08 race is on, so time is scarce for a bipartisan solution.

Dick Cheney, the president of the Senate, immediately expelled Mr. Lugar and appointed himself the new senator from Indiana. It was a busy day of Constitutional shape-shifting for the vice president, who had earlier nominated and confirmed himself to the Supreme Court, so that he could roll back judicial decisions tempering his desire for torture galore, and then morphed back into his executive branch role to bar the door to the Oval Office sandbox and prevent Condi and Bob Gates from giving W. the plan he wanted to close down Gitmo.

Once his BFF Rummy was pushed out, Vice mentally absorbed the role of Defense Secretary into his own portfolio. He allows Mr. Gates — that pragmatic meddler from the skeptical world of Daddy Bush — to keep Rummy’s chair warm, but the new Pentagon chief is certainly not included in the super-secret paper flow Vice created to always get his own way. And Mr. Cheney never acknowledges the power of any secretary of state, be it Colin or Condi. Diplomacy is for wimps.

The Black Adder, David Addington, the Vice’s enforcer of all things evil, sent a snippy reply to a letter from Senator John Kerry yesterday, asking why Vice says his dual role in the legislative and executive branches means he doesn’t have to catalog any classified papers. What could those papers be? Cooked intelligence on invading Iraq? Ill-gotten profits for Halliburton? More chicanery about Scooter Libby? Gitmo and Abu Ghraib torture memos? So many embarrassing options, so little oversight.

In essence, the bizarre response is that nothing applies to the vice president because the vice president is everything. Because he is everything, he relaunched the Swift Boats against Skipper Kerry.

'Angler' For Power

By Eugene Robinson

Tuesday, June 26, 2007

I'm often asked why, given my lower-than-low opinion of this administration, I don't at least raise the subject of whether George W. Bush should be impeached. I answer with three scary words that tend to end the discussion: President Dick Cheney.

Then again, Cheney would probably think of moving into the Oval Office as a demotion. The president, at least, has some accountability to public opinion -- if he's going to defy it, he has to offer some explanation. The president has to hold an occasional news conference, tolerate meetings with his opponents on Capitol Hill and endure lectures from world leaders who question his policies. Cheney can just blow it all off.

Cheney will be remembered not just as the first sitting vice president since Aaron Burr to shoot someone but also as the first vice president in history clever and determined enough to turn what is usually a ceremonial office into a center of vast independent power.

It's ironic that the latest outrage from Cheney is his claim to be exempt from a presidential order concerning the handling of classified documents because his office is not actually, or at least not exclusively, a part of the executive branch. Cheney, you see, has spent the past six years pushing the envelope of executive authority, asserting for Bush and himself the right to do pretty much any damn thing they want.

Didn't Cheney claim executive privilege as his reason for keeping secret the process he followed in developing the administration's energy policy, including the names of the people with whom he met?

The flap over secret documents is a mere bagatelle, however, compared with the way Cheney has usurped, concentrated and wielded power. A remarkable series of stories in The Post about Cheney's unprecedented role began Sunday with the amazing tale of how, two months after the attacks on Sept. 11, 2001, Cheney got Bush to sign an order denying foreign terrorism suspects access to any court of law, military or civilian.

Cheney presented Bush with the order, which had been written "in strict secrecy" by Cheney's lawyer, as the two had lunch. Within the hour, the document had been made official with Bush's signature -- and neither Secretary of State Colin Powell nor national security adviser Condoleezza Rice had been informed.

Rice was "incensed," according to The Post, while Powell didn't learn of the order -- which had enormous implications for U.S. foreign policy -- until he heard it announced that evening on CNN. His response: "What the hell just happened?"

What happened was that Cheney took him to school.

Cheney went on to oversee the development of the shameful philosophical and legal framework that the administration has used to justify submitting detainees in the "war on terror" to what Cheney called "robust interrogation" -- and what international agreements call torture. Cheney supported a hair-splitting distinction between torture on the one hand and "cruel, inhuman or degrading" treatment on the other.

I've never bought the theory of the Bush-Cheney relationship as Pinocchio-Geppetto -- it lets Bush off too easily to imagine that Cheney pulls all the strings. But it's clear that Cheney is the toughest, smartest infighter in the administration and that his toughness and smarts have been employed partly in service of an independent agenda. Cheney came into office believing that the presidency -- and, by extension, the vice presidency -- had been deflated, and he set out to puff them back up again.

Students of public administration should have to take a course called "Cheney." How he has amassed and employed his power offers a case study in how government really works -- and how a skillful operator can make a bureaucracy dance. Take Cheney's penchant for secrecy, which seems to border on the maniacal. His office stamps "SECRET" on routine documents, including talking points for officials to use with reporters. He keeps papers pertaining to everyday business in huge Mosler safes. Is this loopy? No, he's just putting into practice the dictum that information is power. Sunshine is for losers.

The vice president, whose Secret Service code name is "Angler," really does know all the angles. And above all, he knows how to survive. His onetime mentor Donald Rumsfeld is gone, his onetime top aide Scooter Libby is on his way to jail, yet Cheney -- defiantly, disastrously, unbelievably -- remains. It will take years to uncover and undo all the damage he has wrought.

Doubting the Police

By BOB HERBERT

The woman was reluctant to let her name be used. She said she had a teenage son and was afraid that he might be harassed by the police. But her desire to have the truth come out overcame her fears.

“You can use my name,” she told me, “because I did not like what the police did to those kids. My name is Greer Martin.”

Ms. Martin was standing outside her home on a quiet, tree-lined block of Putnam Avenue in the Bushwick section of Brooklyn. This was the block on which, a few weeks ago, the police closed in on a large group of young men, women and children who were walking toward a subway station, on their way to a wake for a friend who had been murdered.

Thirty-two of the young people, including a 13-year-old, were arrested. Most were charged with unlawful assembly and disorderly conduct. Commissioner Ray Kelly and others in the Police Department have been spreading the word that these youngsters had been out of control, walking on top of cars and illegally blocking traffic in the street and on the sidewalk.

It does not appear that any of that was true.

The arrests occurred right outside Ms. Martin’s first-floor windows. “I was shocked beyond shock,” she said. “My windows were open, and it didn’t look like the kids had done anything wrong. The police handcuffed them and lined them up right there, at the beginning of my fence. One young lady was crying, but they didn’t resist in any way.”

She said she asked a detective why the young people were being arrested. “He told me they were trying to defuse a situation,” she said. “He said they were going to take the kids in and have a talk with them.”

A man named Conroy, who asked that his last name not be used, said he witnessed the entire incident. He lives across the street from Ms. Martin, and his 2007 Chevrolet Suburban was parked on the same side of the street that the kids were walking along when they were arrested.

He also said he was shocked by the police action. “The kids weren’t doing anything wrong,” he said.

I asked if anyone had been walking on top of cars. Conroy laughed and gestured toward his gleaming black vehicle. “Don’t you think if they had been climbing on top of cars, I would have noticed?”

He pulled out his cellphone to show me photos of some of the youngsters handcuffed and in police custody. I asked if the youngsters had blocked traffic. Conroy said, “No, not at all. There wasn’t any traffic out here until the police cars swooped in.”

I have interviewed many civilians about this case, and none have supported the police version of events. This is not a small matter. It’s a terrible thing if the police have been lying about their reasons for arresting these youngsters.

The official charges make no mention of people climbing on top of cars. It took a while for that tale to develop. The first time I heard it was in an interview I did with Capt. Scott Henderson of the 83rd Precinct a few days after the arrests. He said he had seen people walking on top of cars and that several of the youngsters had red bandanas.

The bandanas would have signaled that the youngsters were affiliated with the Bloods, the violent and notorious street gang. I asked what had happened to the bandanas. Captain Henderson said he didn’t know.

I e-mailed a list of questions to Commissioner Kelly’s office, trying to get whatever information might be available to corroborate Captain Henderson’s version of events. I asked if there were any other officers who saw anyone on top of cars. I was told that that information could not immediately be tracked down.

I asked if there were any civilian witnesses to such activity. I was referred to the office of the Brooklyn district attorney, Charles Hynes, which did not provide the identity of any witnesses.

I asked if the Police Department had the names of any youngsters who had climbed on top of a car. I was told no.

I believe that an outlandish miscarriage of justice has occurred here, that the youngsters arrested did nothing wrong and that the Police Department’s version of events is false. Commissioner Kelly could clear the matter up once and for all by mounting an honest investigation to determine what really happened.

David Brooks is on vacation.

Don’t Privatize Our Spies

By PATRICK RADDEN KEEFE

SHORTLY after 9/11, Senator Bob Graham, the chairman of the Senate Intelligence Committee, called for “a symbiotic relationship between the intelligence community and the private sector.” They say you should be careful what you wish for.

In the intervening years a huge espionage-industrial complex has developed, as government spymasters outsourced everything from designing surveillance technology to managing case officers overseas. Today less than half of the staff at the National Counterterrorism Center in Washington are actual government employees, The Los Angeles Times reports; at the C.I.A. station in Islamabad, Pakistan, contractors sometimes outnumber employees by three to one.

So just how much of the intelligence budget goes to private contracts? Because that budget is highly classified, and many intelligence contracts are allocated without oversight or competitive bidding, it seemed we would never know. Until last month, that is: a procurement executive from the Office of the Director of National Intelligence gave a PowerPoint presentation at a conference in Colorado and let slip a staggering statistic — private contracts now account for 70 percent of the intelligence budget.

Of course, our spies always relied on private sector expertise. But in the decade after the cold war the intelligence community’s budget was cut by 40 percent. On 9/11, our spies found themselves shorthanded — untrained in the languages spoken by terrorists, unable to crack new communications technologies, generally lagging behind their counterparts outside the government. The privatization boom emerged out of sheer necessity. As one slide at the Colorado briefing had it, “We can’t spy ... if we can’t buy!”

As it happened, the dot-com bubble had burst shortly before 9/11, cutting loose a generation of technology entrepreneurs who, when the government came calling, were only too happy to start developing new data-mining algorithms and biometric identification programs. New startups began sprouting in the suburbs around Washington. The number of “contractor facilities” cleared by the National Security Agency grew from 41 in 2002 to 1,265 in 2006. It was a gold rush, a national security bubble.

Seeing this emerging market, the traditional Beltway Bandits — military-industrial giants like Boeing, Lockheed Martin and Northrop Grumman — established intelligence and homeland security divisions. At Booz Allen Hamilton, a consulting firm one former C.I.A. official called “the shadow intelligence community,” revenue has doubled since 2000.

There is nothing inherently wrong with all this. We want our spies to have access to the best technology and expertise, and if that means they have to look outside the building — and pay top dollar — then so be it. The problem is that the “symbiotic relationship” has turned decidedly dysfunctional, if not downright exploitative.

Take, for example, one (very big) contractor, and one (very big) contract. In 2002, Science Applications International Corporation, a San Diego behemoth with more than 40,000 employees and $8 billion in annual revenue, received a $280 million contract from the National Security Agency to modernize its systems for sifting through the vast flows of information it intercepts. The project was called Trailblazer. By 2005, costs had ballooned to over $1 billion and the system had still not gotten off the ground. One C.I.A. veteran familiar with the program has declared it “a complete and abject failure.”

Trailblazer was a notorious boondoggle, but it wasn’t the biggest. That prize goes to the Future Imagery Architecture, a contract Boeing won before 9/11, in 1999, to develop a new generation of spy satellites that could photograph targets from space.

Inexperienced at building satellites with optical lenses, Boeing started missing deadlines and exceeding cost estimates almost immediately. By the time the Pentagon took the program away from Boeing in 2005, it was five years behind schedule and had cost $10 billion, including $4 billion in cost overruns. For contractors, this sort of failure is seldom punished — it’s often rewarded. Many contracts are “cost plus,” meaning there will be no penalty if a contractor wildly exceeds the initial projection. Better still, a contractor can break something, then bid for the job of putting it back together. When the N.S.A. wanted to create another program, ExecuteLocus, to replace Science Applications International’s failed Trailblazer, it needed a contractor to build it. Who got the job? Science Applications.

The orthodoxy of privatization — that it’s the government that’s mired by inefficiency and a lack of competition — has been turned on its head in the intelligence industry. However patriotic, contractors must ultimately answer to their shareholders and the bottom line. There’s more than one way to read Lockheed Martin’s recent advertising slogan: “We never forget who we’re working for.”

It’s not just the money that flows out the door, either: it’s also the people, as the companies offer hefty raises to government employees who join their ranks. A recent report from the Office of the Director of National Intelligence found that “contractors recruit our own employees, already cleared and trained at government expense, and then ‘lease’ them back to us at considerably greater expense.”

This process — called “bidding back” — has created a brain drain. Two-thirds of the Department of Homeland Security’s senior officials and experts have departed for private industry. Michael Hayden, the C.I.A. director, worries that his agency has become “a farm team for these contractors.”

The revolving door helps firms score more contracts. Federal law prohibits executive branch officials from lobbying former colleagues after leaving public office — but just for the first year. Can a government acquisitions officer who might someday like a job at a contractor really evaluate the contractor’s bid objectively?

William Black Jr. left the National Security Agency in 1997, after a 38-year career, to become a vice president at Science Applications. He returned to the agency as deputy director in 2000, and shortly thereafter the Trailblazer contract was awarded to his former employer. Nothing illegal here, but is there not at least the appearance of a conflict of interest? The good news is that Congress seems to have finally caught on to the scale of the problem. The intelligence authorization bill that passed the House last month included an amendment that would require the director of national intelligence to submit a report on the functions performed by contractors, the ways contracts are vetted, and the savings associated with outsourcing. The Senate Intelligence Committee explicitly chided the spy agencies earlier this month for “increasing reliance on contractors.” In response, the C.I.A. announced that it would pare the number of contractors by 10 percent.

These are promising first steps. But the inspectors general of America’s intelligence agencies must become more aggressive in policing how contracts are awarded — and in halting cost overruns before they reach the billions. The intelligence community should limit the parasitic practice of bidding back, perhaps by limiting contracts with firms that poach too many federal employees. It should also fine companies — or at least stop rewarding them — when they fail to deliver on time and on budget.

Congress should enact more comprehensive legislation, establishing oversight procedures to govern the many conflicts of interest that arise when agencies and industry are this close. If our spy agencies are truly going to protect us, they must learn how to develop — and retain — their own in-house expertise.

Patrick Radden Keefe, a fellow at the Century Foundation, is the author of “Chatter: Dispatches From the Secret World of Global Eavesdropping.”

Lots of Prosecutors Go Too Far. Most Get Away With It.

By Jonathan Turley

Sunday, June 24, 2007

It was an extraordinary scene when Michael B. Nifong, the district attorney in Durham, N.C., took the stand to defend his law license after his failed crusade to convict innocent Duke University lacrosse players of gang rape. He had no more success with his own defense. After being disbarred for "dishonesty, fraud, deceit and misrepresentation," he was suspended from his job last week and now faces a possible lawsuit in civil court.

What's most remarkable about the whole scene, though, is how rare it is. Nifong's misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles -- maybe even rewarded with a cable television show.

Nifong is a classic example of the corrosive effect of high-profile cases on a prosecutor's judgment and sense of decency. Even before the players were indicted, the district attorney had played to the passions surrounding a black stripper's allegations that she had been raped by affluent white college boys. Nifong called the Duke players "a bunch of hooligans'' and promised that he would not allow "Durham in the mind of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham."

But he had a problem. The accuser kept changing her story, and there was no evidence of a gang rape. In addition to his prejudicial comments, Nifong was accused of withholding test results showing that DNA found on the woman's body and underwear came from at least four unknown males -- but none of the 46 lacrosse team members.

Nifong isn't the first prosecutor who, in his words, "got carried away" in the glare of television lights. In 1921, the silent-film star Roscoe "Fatty" Arbuckle was tried for the alleged rape and murder of a 30-year-old showgirl named Virginia Rappe during a party in a hotel suite. The San Francisco district attorney, Matthew Brady, faced a situation almost identical to Nifong's: His chief witness was less than credible.

Rappe's friend Maude Delmont dramatically described how Arbuckle had dragged Rappe into the bedroom, gleefully proclaiming, "I've waited five years to get you." She insisted that she spoke with Rappe three days later, just before the young woman died (of peritonitis caused by a ruptured bladder), and related the too perfect account of how Rappe yelled, "I'm hurt, I'm dying. He did it, Maude." In reality, rather than staying by her dying friend's bedside, Delmont had run to send a telegram to friends that read: "We have Roscoe Arbuckle in a hole here. Chance to make some money out of him."

It didn't matter. Brady was hooked. Like Nifong's conflicting DNA report, the coroner's report in the Arbuckle case found "no marks of violence . . . and absolutely no evidence of a criminal assault, no signs that the girl had been attacked in any way." Just as Nifong insisted that he had clear evidence against the lacrosse players, Brady released a statement (soon after receiving the coroner's report) saying that the evidence "shows conclusively that either a rape or an attempt to rape was perpetrated." Notably, when Arbuckle was finally acquitted in a third trial, the jury issued a written apology for the "great injustice . . . done him."

The Duke case also has some striking resemblances to the trial of the so-called Scottsboro Boys. This case of prosecutorial abuse stemmed from a fight on the evening of March 25, 1931, in which a group of black youths threw a group of white boys off a freight train in northern Alabama. When police pulled the black boys off the train, they found two white girls dressed in men's clothing also riding the train. The girls claimed that they had been held against their will, beaten and raped by the black youths.

Like Nifong, the Scottsboro prosecutors ignored the conspicuous absence of forensic and medical evidence supporting the rape charges -- particularly the lack of bruises or torn clothing. (One girl later admitted that they had made up the story to avoid getting in trouble with the law themselves.) All nine Scottsboro defendants were convicted in one-day trials and sentenced to death, with the exception of a 13-year-old boy who was spared death by one holdout juror. (After the Supreme Court intervened and after multiple trials and pardons, the accused were released years later.)

This abuse occurred because the critical safeguard of prosecutorial discretion -- the decision whether to pursue a case -- didn't protect the suspects. Despite what you see on television, the chances of being convicted in a criminal case are extremely high. Grand juries are said to be willing to "indict a ham sandwich," and it's not uncommon for prosecution offices to have conviction rates of 90 percent or higher. Some prosecutors grow callous and cavalier about their role. When told that he had secured the death penalty against an innocent man, a Texas prosecutor once reportedly boasted that "any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man."

History is rife with such "great prosecutors" convicting the innocent to satisfy the public. In the 1913 Leo Frank trial, Atlanta chief prosecutor Hugh Dorsey pursued a Jewish factory owner for the rape and murder of 13-year-old factory worker Mary Phagan. It was a period of intense anti-Semitism, with crowds chanting "Kill the Jew" outside the courtroom. Prosecutors ignored the fact that all the evidence pointed to a janitor, Jim Conley, as the killer. Instead, they repeatedly rewrote Conley's conflicting statements to help him manufacture a coherent account for trial. Conley was identified years later as the killer by a witness, but it was too late for Frank. He was kidnapped from prison by vigilantes (including many leading lawyers) and hanged near Mary's grave.

Prosecutors are sworn to protect the rights of the accused as well as the accuser, to refuse to pursue cases that would not serve the interests of justice. Yet in today's environment, it appears that prosecutors can never be too tough, the way models can never be too skinny.

Consider the career of Nancy Grace. Before becoming a CNN and Court TV anchor, she was a notorious prosecutor in Alabama. In a blistering 2005 federal appeals opinion, Judge William H. Pryor Jr., a conservative former Alabama attorney general, found that Grace had "played fast and loose" with core ethical rules in a 1990 triple-murder case. Like Nifong, Grace was accused of not disclosing critical evidence (the existence of other suspects) as well as knowingly permitting a detective to testify falsely under oath. The Georgia Supreme Court also reprimanded her for withholding evidence and for making improper statements in a 1997 arson and murder case. The court overturned the conviction in that case and found that Grace's behavior "demonstrated her disregard of the notions of due process and fairness and was inexcusable." She faced similar claims in other cases.

You might have expected Grace to suffer the same fate as Nifong. Instead, she has her own show on CNN, and the network celebrates her as "one of television's most respected legal analysts." On TV, she displays the same style she had in the courtroom. (In the Duke case, her presumed-guilty approach was evident early on, when she declared: "I'm so glad they didn't miss a lacrosse game over a little thing like gang rape.")

The Grace effect is not lost on aspiring young prosecutors who struggle to outdo one another as camera-ready, take-no-prisoners avengers of justice. Grace's controversial career also shows how prosecutors can routinely push the envelope without fear of any professional consequences. Often this does not mean violating an ethics rule, but using legally valid charges toward unjust ends.

Take the case of Genarlow Wilson. An honors student and gifted athlete, he was preparing for college in 2005 when he was charged in Georgia with aggravated child molestation for having consensual oral sex with a 15-year-old girl.

Though Wilson was only 17, Douglas County District Attorney David McDade and Assistant D.A. Eddie Barker secured a 10-year sentence for an act committed by thousands of teenagers every year. It's not a crime in most states, and Georgia recently reduced it to a misdemeanor. But the prosecutors are now fighting a judge's efforts to release Wilson. They can't be charged on ethical grounds, but they've used the criminal justice system to brutalize a young man who should have received a stern parental lecture, not a 10-year prison term.

Nifong's disbarment may deter some prosecutorial abuse, but until less visible cases are subjected to more scrutiny, it may prove to be an isolated event -- driven by the same publicity that led to the abuse in the first place. If the case hadn't been so high-profile, it's doubtful that Nifong would have been charged, let alone disbarred, for his misconduct. The Duke case should teach us that a truly fair criminal justice system must strive to protect the rights of the accused as vigorously as it does those of the accuser.

Jonathan Turley is a professor of law at George Washington University Law School.

They’ll Break the Bad News on 9/11

By FRANK RICH

BY this late date we should know the fix is in when the White House's top factotums fan out on the Sunday morning talk shows singing the same lyrics, often verbatim, from the same hymnal of spin. The pattern was set way back on Sept. 8, 2002, when in simultaneous appearances three cabinet members and the vice president warned darkly of Saddam's aluminum tubes. "We don't want the smoking gun to be a mushroom cloud," said Condi Rice, in a scripted line. The hard sell of the war in Iraq — the hyping of a (fictional) nuclear threat to America — had officially begun.

America wasn't paying close enough attention then. We can't afford to repeat that blunder now. Last weekend the latest custodians of the fiasco, our new commander in Iraq, Gen. David Petraeus, and our new ambassador to Baghdad, Ryan Crocker, took to the Sunday shows with two messages we'd be wise to heed.

The first was a confirmation of recent White House hints that the long-promised September pivot point for judging the success of the "surge" was inoperative. That deadline had been asserted as recently as April 24 by President Bush, who told Charlie Rose that September was when we'd have "a pretty good feel" whether his policy "made sense." On Sunday General Petraeus and Mr. Crocker each downgraded September to merely a "snapshot" of progress in Iraq. "Snapshot," of course, means "Never mind!"

The second message was more encoded and more ominous. Again using similar language, the two men said that in September they would explain what Mr. Crocker called "the consequences" and General Petraeus "the implications" of any alternative "courses of action" to their own course in Iraq. What this means in English is that when the September "snapshot" of the surge shows little change in the overall picture, the White House will say that "the consequences" of winding down the war would be even more disastrous: surrender, defeat, apocalypse now. So we must stay the surge. Like the war's rollout in 2002, the new propaganda offensive to extend and escalate the war will be exquisitely timed to both the anniversary of 9/11 and a high-stakes Congressional vote (the Pentagon appropriations bill).

General Petraeus and Mr. Crocker wouldn't be sounding like the Bobbsey Twins and laying out this coordinated rhetorical groundwork were they not already anticipating the surge's failure. Both spoke on Sunday of how (in General Petraeus's variation on the theme) they had to "show that the Baghdad clock can indeed move a bit faster, so that you can put a bit of time back on the Washington clock." The very premise is nonsense. Yes, there is a Washington clock, tied to Republicans' desire to avoid another Democratic surge on Election Day 2008. But there is no Baghdad clock. It was blown up long ago and is being no more successfully reconstructed than anything else in Iraq.

When Mr. Bush announced his "new way forward" in January, he offered a bouquet of promises, all unfulfilled today. "Let the Iraqis lead" was the policy's first bullet point, but in the initial assault on insurgents now playing out so lethally in Diyala Province, Iraqi forces were kept out of the fighting altogether. They were added on Thursday: 500 Iraqis, following 2,500 Americans. The notion that these Shiite troops might "hold" this Sunni area once the Americans leave is an opium dream. We're already back fighting in Maysan, a province whose security was officially turned over to Iraqi authorities in April.

In his January prime-time speech announcing the surge, Mr. Bush also said that "America will hold the Iraqi government to the benchmarks it has announced." More fiction. Prime Minister Nuri al-Maliki's own political adviser, Sadiq al-Rikabi, says it would take "a miracle" to pass the legislation America wants. Asked on Monday whether the Iraqi Parliament would stay in Baghdad this summer rather than hightail it to vacation, Tony Snow was stumped.

Like Mr. Crocker and General Petraeus, Mr. Snow is on script for trivializing September as judgment day for the surge, saying that by then we'll only "have a little bit of metric" to measure success. This administration has a peculiar metric system. On Thursday, Peter Pace, the departing chairman of the Joint Chiefs of Staff, called the spike in American troop deaths last week the "wrong metric" for assessing the surge's progress. No doubt other metrics in official reports this month are worthless too, as far as the non-reality-based White House is concerned. The civilian casualty rate is at an all-time high; the April-May American death toll is a new two-month record; overall violence in Iraq is up; only 146 out of 457 Baghdad neighborhoods are secure; the number of internally displaced Iraqis has quadrupled since January.

Last week Iraq rose to No. 2 in Foreign Policy magazine's Failed State Index, barely nosing out Sudan. It might have made No. 1 if the Iraqi health ministry had not stopped providing a count of civilian casualties. Or if the Pentagon were not withholding statistics on the increase of attacks on the Green Zone. Apparently the White House is working overtime to ensure that the September "snapshot" of Iraq will be an underexposed blur. David Carr of The Times discovered that the severe Pentagon blackout on images of casualties now extends to memorials for the fallen in Iraq, even when a unit invites press coverage.

Americans and Iraqis know the truth anyway. The question now is: What will be the new new way forward? For the administration, the way forward will include, as always, attacks on its critics' patriotism. We got a particularly absurd taste of that this month when Harry Reid was slammed for calling General Pace incompetent and accusing General Petraeus of exaggerating progress on the ground.

General Pace's record speaks for itself; the administration declined to go to the mat in the Senate for his reappointment. As for General Petraeus, who recently spoke of "astonishing signs of normalcy" in Baghdad, he is nothing if not consistent. He first hyped "optimism" and "momentum" in Iraq in an op-ed article in September 2004.

Come September 2007, Mr. Bush will offer his usual false choices. We must either stay his disastrous course in eternal pursuit of "victory" or retreat to the apocalypse of "precipitous withdrawal." But by the latest of the president's ever-shifting definitions of victory, we've already lost. "Victory will come," he says, when Iraq "is stable enough to be able to be an ally in the war on terror and to govern itself and defend itself." The surge, which he advertised as providing "breathing space" for the Iraqi "unity" government to get its act together, is tipping that government into collapse. As Vali Nasr, author of "The Shia Revival," has said, the new American strategy of arming Sunni tribes is tantamount to saying the Iraqi government is irrelevant.

For the Bush White House, the real definition of victory has become "anything they can get away with without taking blame for defeat," said the retired Army Gen. William Odom, a national security official in the Reagan and Carter administrations, when I spoke with him recently. The plan is to run out the Washington clock between now and Jan. 20, 2009, no matter the cost.

Precipitous withdrawal is also a chimera, since American manpower, materiel and bases, not to mention our new Vatican City-sized embassy, can't be drawn down overnight. The only real choice, as everyone knows, is an orderly plan for withdrawal that will best serve American interests. The real debate must be over what that plan is. That debate can't happen as long as the White House gets away with falsifying reality, sliming its opponents and sowing hyped fears of Armageddon. The threat that terrorists in civil-war-torn Iraq will follow us home if we leave is as bogus as Saddam's mushroom clouds. The Qaeda that actually attacked us on 9/11 still remains under the tacit protection of our ally, Pakistan.

As General Odom says, the endgame will start "when a senior senator from the president's party says no," much as William Fulbright did to L.B.J. during Vietnam. That's why in Washington this fall, eyes will turn once again to John Warner, the senior Republican with the clout to give political cover to other members of his party who want to leave Iraq before they're forced to evacuate Congress. In September, it will be nearly a year since Mr. Warner said that Iraq was "drifting sideways" and that action would have to be taken "if this level of violence is not under control and this government able to function."

Mr. Warner has also signaled his regret that he was not more outspoken during Vietnam. "We kept surging in those years," he told The Washington Post in January, as the Iraq surge began. "It didn't work." Surely he must recognize that his moment for speaking out about this war is overdue. Without him, the Democrats don't have the votes to force the president's hand. With him, it's a slam dunk. The best way to honor the sixth anniversary of 9/11 will be to at last disarm a president who continues to squander countless lives in the names of those voiceless American dead.