November 4, 2005 | 11:48 AM ET | Permalink

I’ve got a new Think Again column here called “Mr. Fitzgerald’s Unanswered Questions” and a New Nation column here, “Can We Talk?”  It’s part II of this column.

Character for conservatives I:

Bush's Popularity Reaches New Low; 58 Percent in Poll Question His Integrity, here.  It’s about time….

Scowcroft doesn’t approve either. That article is finally online here.

Character for conservatives II:  The Bush administration deliberately misled the nation into a catastrophic war—a majority view in this country by the way— smearing and threatening those who disagreed, but when the Democrats seek to discover the details of how they did it with an eye toward preventing it from happening again, David Brooks uses his real estate in The New York Times to laugh at them and call them crazy.  Disgusting.

Krugman answers Brooks (and Packer, Weisberg, Traub, et al) here.

Character for conservatives, III:  “Representative Tom DeLay asked the lobbyist Jack Abramoff to raise money for him through a private charity controlled by Mr. Abramoff, an unusual request that led the lobbyist to try to gather at least $150,000 from his Indian tribe clients and their gambling operations, according to newly disclosed e-mail from the lobbyist's files.”  Typical.

Character for conservatives, IV:  Business as Usual:

From Newsweek:

President Bush last week appointed nine campaign contributors, including three longtime fund-raisers, to his Foreign Intelligence Advisory Board, a 16-member panel of individuals from the private sector who advise the president on the quality and effectiveness of U.S. intelligence efforts.

This just in.  The Financial Times (and congrats to my friend Lionel Barber, by the way) has identified the nations in which the CIA is running secret jails and likely, torture chambers, the same way the Soviets did when they ran those places.  They are, according to Human Rights Watch, Poland and Romania, here.  The Post didn't think you should know--or at least wouldn't take responsibility for it.

Don’t go away mad, Ken.

Gore/Obama '08

We’re losing, in every way, morally, politically and militarily, here.

Remember it’s “Stiff Little Roy” week.  Give the money to UNICEF to fight AIDS in Africa instead, here.

Alter-appearances:  I’ll be on Al Franken’s show on Thursday afternoon, either at 1 or 1:30, I’m not sure.  It will be live at the New School in New York and I hope there will be details here.  I’m doing it to plug the paperback of When Presidents Lie.

That evening, I’ll be back at the New School to interview Navasky. The information is below. We will both be signing books afterward, but he will be signing more of them. 

Thursday, November 10, 2005
6:00-7:30 p.m. Swayduck Auditorium
first floor
65 Fifth Avenue (between East 13-14th Sts.)

The next day, Friday the 11th, I’ll be giving one paper at a panel on Clinton and the media, and commenting on three more on a panel on Clinton and the culture at the Hofstra Conference entitled, WILLIAM JEFFERSON CLINTON, The "New Democrat" From Hope

Thursday, Friday and Saturday
November 10, 11, and 12, 2005

Everything you need to know is here.

Correspondence Corner:

Name: Stupid
Hometown: Chicago
Hey Eric, it's Stupid to listen to Paul Volcker.

"There is a 75% chance of a financial crisis in the next five years....I think the problem now is that there isn't a sense of crisis."

Neocons might not have liked Volcker’s oil-for-food investigation (though it’s hardly been the whitewash they claimed), but they have never questioned his abilities as an economist.  Here's Clyde Prestowitz, who served in the Department of Commerce under Reagan, echoing the same theme.

Yet despite all the platitudes about reversing Dubya’s tax cuts or “porkbusters,” nobody on either side of the aisle displays a sense of urgency.  But where is Volcker wrong?  Do you see the same anecdotal evidence I do that our borrow-and-spend economy is reaching its limit?  Here in Chicago, one of the cities allegedly --not-- in a housing bubble, new home building is going on like crazy.  New condo skyscrapers, townhouses, teardowns of small suburban houses replaced with "McMansions," you name it.  Yet both the city and suburban populations have remained steady in the census.  So did the whole region suddenly get rich and decide to upgrade their housing?  Or is all this construction being done on borrowed coin?  Americans' consumption has been fearless.  It has survived a jobless recovery, high gas prices and the shock of Katrina.  But how many straws can be put on the camel's back?  Starting in 2006 people who carry a credit card balance will see their minimum payments double (pursuant to a well-meaning but ill-timed government initiative).  Universities were just hit with a $7 billion unfunded mandate to hook up their computer databases with Homeland Security, sure to be passed on to parents.  Local governments are expected to pay for stocks of prescription flu medicine as part of Dubya's Avian Flu initiative.  I know people who can't afford another shock
to their budget, and yet there seems to be one around every corner.

I understand why the left is transfixed with Plamegate and Alito.  But if a second great depression hits, how many of us are going to be comforted that it brought a change of government?  Platitudes about reversing the tax cuts won't cut it any more, a nation just can’t keep hemorrhaging money out of its borders without inviting doom.

Name:  Barry L. Ritholtz
Hometown:   The Big Picture
Hey Doc,
Last week saw an utterly absurd column from Forbes: Attack of the Blogs. (I too joined the fray mocking Forbes' folly.)

So how ironic is it that only a few days after Forbes crapped out that cover issue, events would remind us all too well how significant the blogging public has become: not only to the digerati, but to the idea of Democracy and self-rule, and as a counter-balance the powerful monied corporate interests who are the dominant force in America.

Here are all the details:

(see original for links)

One couldn't have ever asked for a better example of why blogs are so crucial a counter-weight than Monday's DRM debacle.

On the same day, 2 posts revealed a rather nefarious scheme by Sony: Mark Russinovich posted a detailed takedown of how Sony's DRM installed malware into Windows-based PCs (Sony, Rootkits and Digital Rights Management Gone Too Far).  Simultaneous to that, my own humble effort was to look at how absurd, inconvenient and pointless Sony's DRM was on a CD I wanted to purchase.

The response from the Web was fairly swift.  Both posts got picked up by many blogs:  Boing Boing, Kottke, Atrios, Daily KOS, Good Morning Silicon Valley, Ars Technica, MSNBC, Interesting People, ZD-net, Engadget, Slyck, Digg, Businesspundit, Infectious Greed, Nerdlaw, etc.  They even became the fourth most popular posts tagged by del.icio.us.  My own blog received over a 100 comments and a dozen trackbacks -- most of which were extremely intelligent, lucid and useful information.

So, we have a case where private citizens identify egregious corporate behavior -- towards both consumers as well as another corporate actor.  The press was unaware of the issue.  Only after the blogosphere erupted did the mainstream media catch on.

And the best advice one ignorant journo could muster on the subject was to advise corporate interests to harass, file nuisance lawsuits, dissemble, and deny.

Understand:  I am in favor of corporations.  I think that very often, they can and do make our lives collectively better.  However, when they exercise poor judgment, when they lie, when they behave badly, I believe in calling them out on it.  Supreme Court Justice Louis D. Brandeis once said, "Sunshine is the best disinfectant," and that's more true than ever today.  Think of the blogosphere as millions of intelligent agents, all of whom are busy redirecting sunshine to where it's needed most.

George Orwell's 1984 is a vision of totalitarian repression, with Big Brother everywhere.  But in Orwell's nightmare, there is no informed, aggressive citizenry, no Little Brothers.  No blogosphere.

Over the past 10 years, corporate owned media has seen their budgets slashed.  Where there were once many reporters, there are now few.  Where there was aggressive investigation, there are now press releases.  Where there were once muckrakers, there are now embeds.

Too often, News Reporting has become this timid, celebrity-obsessed "infotainment."  Ask yourself:  How did the media do in their reporting, leading up to the Iraq War?  There were very few stand outs.  Knight-Ridder, the WSJ, and the Christian Science Monitor.  Most everyone else was AWOL.

Nature hates a vacuum.  And so, that void was filled.

The most intelligent and hip members of the 4th Estate have even joined the process.  Collectively, citizen journalists can do things that individual members of the media cannot.  The blogosphere is simply another 100 million eyes and ears -- watching, listening, speaking, exchanging information and ideas.

If it were up to Forbes, none of this would be occurring.

Capitalist tools, indeed.

Name: David Shaffer
Hometown: Harleysville, PA
Doc -
In re the Pennsylvania Abortion Control Act of 1982, I was struck by one part in particular.

(a) SPOUSAL NOTICE REQUIRED.--In order to further the Commonwealth's interest in promoting the integrity of the marital relationship...

What exactly is the "Commonwealth's interest" here, and since when is it the government's job to promote the "integrity of the marital relationship"?  If it's in the Commonwealth's interest to promote the "integrity of the marital relationship," then maybe the Commonwealth should give me and my wife a big pile of money to live on so we won't have to work - that way we could focus our efforts on the "promoting the integrity of the marital relationship."  While I agree with the principle that fewer abortions would be a good thing, I have serious issues with the conservatives' preferred means to this end - restricting or outlawing abortion.  To me, this is treating the symptom, not the problem.  The only reason for a woman to seek an abortion is because she is faced with an unwanted pregnancy.  If there were no unwanted pregnancies, there would be no need for abortion.  And yet, some of the most vociferous opponents to abortion are the so-called "moral" crusaders who also vehemently oppose comprehensive sex education in schools, distribution of birth control, and other methods that would prevent unwanted pregnancies in the first place.  When one realizes this hypocrisy, the real issue involved becomes clear.  While the rhetoric of the political right is couched in such a fashion as to make it appear as though they are taking the "moral high ground," the debate is not so much about morality as it is about power.  Specifically, who should have the power to make complex moral decisions - the individual or the government? 

As a male of the species, I will never be pregnant, will never be faced with that decision, will never have to live with the consequences of that decision, and will never have to justify that decision to my Maker. Therefore, what is my basis for making that decision for someone else? What justification do I have for imposing my view of morality on another individual?  How is it in society's best interest for the government to make moral decisions of this nature?  As a respondent yesterday put it so well, "The purpose of laws, any laws, is to protect people's rights, NOT to uphold morality."  A law that would strip away the individual's right to make moral decisions is not in "the Commonwealth's interest," nor anyone else's.

Name:  Adam
Hometown:  Providence, RI
Dr. Alterman,
Re: Brad's point about the exceptions in Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. 3203-3220 (1990)  While Brad is correct in noting the exceptions carved out, he fails to note something.  If none of those exceptions are true in her case, then, in order to terminate her pregnancy, a married woman must lie (possibly perjuring herself) in order to exercise what is considered a constitutional right.  What if she does not know who the father is?  It happens, you know.  Thus, she may be forced to commit a crime in order to do what Roe said she has a right to do.  More importantly, the issue of undue burden is an issue of equal protection.  In this case, a married woman has fewer reproductive rights than a single woman, who does not have to answer to anyone.  Also, as has been pointed out before, this law gives a husband a degree of control over his wife, the one who is at physical risk, however small, from pregnancy.  As single women do not have to deal with such possible obstacles, again, married women are being discriminated against with respect to their reproductive rights.

Name:  NABNYC
Hometown:  Camarillo, California
Re: Notification of spouse.  There is no legal reason to require a woman to tell her husband she is going to have an abortion unless the law also gives the husband the right to prevent her from having the abortion.  Under current law, the decision of whether to have an abortion rests with the woman in consultation with her doctor.  Since men (husbands/fathers/otherwise) do not have the legal right to prevent the abortion, what is the purpose of requiring that they be informed?  Implicit in such a requirement is the assumption, still contrary to our laws, that the husband has a legal right to prevent the abortion; or that he has a legal right to have his views weighed against those of his wife.  But the law does not require a woman to get the consent of anyone.  The premise to existing law is that the question of whether to continue a pregnancy is one to be answered solely by the pregnant woman, and the views of others have no legal bearing or weight.  And implicit in our constitutional privacy rights is the further understanding that anyone should be free to make medical decisions without having that information disclosed to anyone - spouse or otherwise.  Therefore, the husband's views on the decision are irrelevant, and there is no justification for a legal requirement that he be told.  In most marriages, of course, this would be discussed.  We need to separate out what we personally would do in our own marriages from what was proposed here:  that the government be given the authority to require a woman to tell her husband.

Name:  Justin Robinson
Hometown:  College Park, MD
I have to take issue with one of the exceptions to the notification law supported by Alito and Brad from Arlington. 

(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.

Most people with experience in this area know that a large number of sexual assaults go unreported, especially when someone who is close or trusted is the perpetrator making it very unlikely that a woman would have fulfilled this portion of the clause and creating what I consider an undue burden in forcing her to report it.

Name: Lee
Hometown: Alexandria, VA
Dr. Alterman,
" Agencies run by career execs get better management grades"  Hmmmm..... Is it possible that the Bush kakistocracy could learn from the reality based community assessment of the performance of political appointees?  Naa, not likely.  Where will Michael Brown end up next, the Nuclear Regulatory Commission?

Name:  Derryl Murphy
Hometown:  Prince George, BC
Saul Zaentz may indeed have been involved in some great films, but Fogerty is not the only one he's screwed over during this time.  Peter Beagle, author of the classic "The Last Unicorn," is another.  See this link for a good overview/commentary on the matter.

Name:  Jeff Metzger
Hometown:  Coto de Caza, CA

Eric,
This coming Saturday is the 50th anniversary of my first appearance on this planet (at least this time around), and I've decided to eschew gifts in favor of tzedakah (the Hebrew word commonly translated as "charity," though it is based on a root meaning "justice.")  I'd like to ask your readers to help me.

Today in the United States, there are 36 million people, including 13 million children, who suffer from hunger or live on the edge of hunger.  We have the highest child poverty rate of any other industrialized nation.  Over ten percent of Americans age 65 or older live in poverty.  Nearly 12 percent of rural households face hunger every day.  Worldwide, 841 million of our brothers and sisters are malnourished, 880 million are without access to medical care, 1 billion have inadequate shelter, 1.3 billion don't have safe drinking water, 2.6 billion are without safe sanitation, and 30,000 children die each day because of lack of adequate health care.  Bruce, for sure, speaks for each and every one of them when he sings, "Is a dream a lie if it don't come true, or is it something worse?"

We know that the government refuses to make feeding, housing, and providing medical care to all Americans much of a priority, and I was particularly struck by this comment from our rabbi, Arnold Rachlis, in his Yom Kippur sermon.

Our religious faith reminds us that civilizations survive not only by strength, but in how they respond to the weak, not only by wealth but for how they care for the poor, not only by their power, but by their concern for the powerless.  The ironic, yet utterly human, lesson of history is that what renders a culture invulnerable is the compassion it shows for the vulnerable.

It is up to each of us to act.  I've written to you in the past about the hunger charity, Mazon (A+ rated by American Institute of Philanthropy's Charity Watch.)  The money it raises is distributed in grants worldwide to prevent and alleviate hunger among peoples of all faiths and backgrounds.  Generally, the grants are not used to provide food for the hungry, but rather, instead to build the infrastructure needed to make food available to those who do not have ready access to it on a regular basis.  It is likely that the food banks and shelters in your area have, at one time or another, been the recipient of a grant from Mazon. This year, Mazon will provide over $3 million in grants to the needy.

While there are many hungry and needy people in each and every of our own towns and cities, I have become particularly moved by the plight of one of Mazon's grantees in the midwest.  Thus, for my birthday tzedakah project, I have chosen to help the organization feed hungry Lakota Indians and other low-income people in an impoverished rural part of Nebraska.

Native Americans suffer the worst food insecurity and nutritional needs of any of our subpopulations, and several years ago, an Indian activist, and guardian angel, by the name of Mark Monroe started the American Indian Council Nutritional Program (for which he was honored by the Smithsonian Institute's National Museum of the American Indian).  When he tragically died, his daughters started an off-the-reservation program serving nutritious hot meals five days a week to the folks in and around Alliance, NE.

The President of Mazon told me more recently:

This little gem of a program works with contributions from local churches, MAZON (since 1992), and with a small grant from the state of Nebraska. The funds cover the food costs, preparation of the meals. They have expressed to us for sometime, that they could reach more needy folks or expand to seven days a week if they had the storage capacity (and refrigeration) to keep the excess food donations they have to buy or get donated. I think your assistance would be able to help put them on firm footing and help build the capacity facility they need.

I aim to raise at least $25,000, which should go a long way in Alliance to providing the needed kitchen supplies and equipment, storage capacity, and capital improvements that will allow for these poverty-stricken Americans to be fed each and every day. As an incentive, my wife and I are matching the first $10,000 that is contributed to this effort. I am hoping that there will be some who give $1,000, some who give $500, $250, $100, or whatever they can afford and feel is appropriate. This is not just a birthday gift for me, but a gift to themselves for their compassion towards the vulnerable.

To donate on-line, go to Mazon.org, and click on the button entitled "Donate Today."  From there, the instructions are self-explanatory.  At the final screen, in the box entitled "Special Instructions for this Donation," type in "Nebraska AIC--Metzger".

Those wishing to contribute by check, should make it out to Mazon, and in the memo line type in "Nebraska-AIC--Metzger" and mail to the Mazon office,

1990 South Bundy Drive
Suite 260
Los Angeles, CA  90025
310-442-0020

Many thanks to you for spreading the word.

November 3, 2005 | 11:21 AM ET | Permalink

I wrote an op-ed for the L.A. Times (as part of my four-deadline Wednesday) called “First casualty of war” about the recent revelations regarding the Tonkin Gulf incident and the Bush administration’s attitude toward truth and war, here.

(Due to the fact that I went to a screening of the new Springsteen DVD, I got back to my editor too late to excise the sentence “What worried the Democrats about Iraq turns out to be exactly what happened in Vietnam.”  I should have said “hauntingly similar.”  Nothing is “exactly” like anything else, we historians are always saying, and it’s true.  The Hammersmith ’75 performance is too great for words, however.)

Todd Gitlin wrote about the Democrats for Salon, here.  My Nation column which comes out tomorrow (and is the second part of my previous column on liberalism) is addressed to a similar issue.

Congrats to my friend Jon Prince for the first ever gay porn video for a candidate for mayor, here (scroll).  Seriously, I’d vote for Freddy just for this ad, and I’m not much of a gay porn fan.  (Which reminds me.  Since that was the ‘hat-tip,’ Andy is trolling for $ again.  Last time he did that he semi-retired right afterward.  How about everybody who was going to give to Andy, give the money to UNICEF to fight AIDS in Africa instead?  Here.  If Andy disagrees, this space is his to make a counter-argument.)

Ways in Which the Disinterred Corpse of Silent-Film Actor Lon Chaney Would Be a Better Vice President Than Dick Cheney.

Altercation Book Club:

Affirmative Action in White and Black
—Ira Katznelson

Ira Katznelson, a professor of political science and history at Columbia University, is the author of When Affirmative Action Was White: An Untold History of Racial Inequality in America (W.W. Norton, 2005).

I owe an apology to John Hope Franklin, the historian who just turned 90.  After listening to NPR in late October as he reflected on his lifelong refusal to be stunted by racism, I turned to his history of black America, From Slavery to Freedom.  I still recall the intellectual excitement I felt in reading, as an undergraduate in the 1960s, how race could, indeed must, be placed at the center of American political history.  There, on p.529, I found this sentence, referring to the minimum wage and 40 hour work week legislation that Congress passed in 1938: “While perhaps better than a million Negroes were affected by the Act, several millions were not; since it excluded agricultural and domestic workers, just as the Social Security Act did.”  

I recently published When Affirmative Action Was White, a book that reviews how these laws and other federal policies created during the New Deal and Fair Deal in the 1930s and 1940s boosted whites into the middle class while often excluding African-Americans, especially the majority who still lived in the seventeen states that mandated racial segregation. 

Southern members of Congress used occupational exclusions and took advantage of American federalism to insure that their region’s racial order would not be disturbed by national policies.  Farm workers and maids, the jobs held by most southern blacks, were denied Social Security pensions, minimum wages, and access to labor unions.  Administered locally, the famous postwar GI Bill adapted to ‘the southern way of life’ by accommodating to segregation in higher education, to the job ceilings local officials imposed on returning black soldiers who came home from a segregated army, and to an unwillingness to offer loans to blacks even when they were insured by the federal government.  Of the 3,229 GI Bill guaranteed home, business, and farm loans made in 1947 in Mississippi, for example, only two were offered to black veterans. 

Although aspects of this record have found their way into articles and books by scholars, the full story cannot come into focus unless all its parts are considered together.  Social Security began to pay old age pensions in 1939.  By the end of the 1940s, its original provisions had been impressively improved.  The GI Bill was the largest targeted fully national program of support in American history.  The country passed new labor laws that promoted unions and protected people as they worked.  The army was a great engine of skill training and mobility during the Second World War.  None of these was a marginal or secondary program.  To the contrary, individually and collectively they organized a revolution in the role of government that remade the country’s social structure in dramatic, positive ways. 

But most blacks were left out.  The damage to racial equity was immense.  Social Security, from which the majority of blacks were excluded until well into the 1950s, quickly became the country’s most important social legislation.  The labor laws of the New Deal and Fair Deal created a framework of protection for tens of millions of workers who secured minimum wages, maximum hours, and the right to join industrial as well as craft unions.  African Americans who worked on the land or as domestics, the great majority, lacked these protections.  When unions made inroads in the South, where most blacks lived, moreover, Congress changed the rules of the game to make organizing much more difficult. 

Perhaps most surprising and most important, the treatment of veterans after the war, despite the universal eligibility for the benefits offered by the GI Bill, perpetuated the blatant racism that had marked the affairs of a still-segregated military during the war itself.  At no other time in American history has so much money and so many resources been put at the service of the generation completing education, entering the work force, and forming families.  Comparatively little of this support was available to black veterans. With these policies, the Gordian Knot binding race to class tightened. 

This is an unsettling history, especially for those of us who keenly admire the New Deal and Fair Deal.  At the very moment a wide array of public policies were providing most white Americans with valuable tools to insure their old age, get good jobs, acquire economic security, build assets, and gain middle-class status, black Americans were mainly left to fend on their own.  Ever since, American society has been confronted with the results of this twisted and unstated form of affirmative action. 

As a political scientist, I wrote When Affirmative Action Was White to understand the mechanisms that produced these outcomes, particularly the disproportionate power over national life still exercised in Congress by the men who represented the Jim Crow South.  As a historian, I wanted to set this record straight.  Nostalgia for long-gone progressive politics cannot justify a sanitized version of the New Deal.  But most important, as a citizen, I wished to change how we think, talk, and act about affirmative action today by looking back as well as forward from the vantage of the 1960s. 

A full generation of federal policy, lasting until the civil rights legislation and affirmative action of the 1960s, boosted whites into homes, suburbs, universities and skilled employment while denying the same or comparable benefits to black citizens.  Despite the prosperity of postwar capitalism’s golden age, an already immense gap between white and black Americans widened.  Even today, after the great achievements of civil rights and affirmative action, wealth for the typical white family, mainly in homeownership, is ten times the average net worth for blacks, and a majority of African-American children in our cities subsist below the federal poverty line. 

Once we understand this history, we can get beyond the stereotyped debate between advocates of affirmative action, who tend to make very general claims for compensatory policies, and its opponents, who defend the principles of non-discrimination and equal treatment under the law while seeming blind to the organizing powers of race in American life.  Instead, we can apply the test of ‘strict scrutiny’ favored by conservative judges, who insist that remedies for racism must be antidotes to specific, not general, racial harms.  Based on this history, it is possible to advocate a new round of activist and public policies as answers to the specific injuries inflicted by national policies in the 1930s and 1940s.  In this way, the country, at last, might come to terms with the deep, even chronic, dispossession that continues to afflict a large fraction of black America.

As I have no doubt that John Hope Franklin would support the goal of connecting the history of racist elements in the New Deal to the promotion of progressive policies today, why do I offer an apology?   The Talmud teaches that debts must be discharged publicly.  Even though I had not read From Slavery to Freedom in some time, my book stands on the shoulders of its unstinting appraisal.  I wish I had offered the proper appreciation.  I do so now, adding warm birthday wishes.

For more, go here.

Correspondence Corner:

Name: Richard Opie
Hometown: Milwaukee, WI
Under the Pennsylvania abortion statute that Alito would have upheld, a woman could have avoided the requirement to notify her husband by invoking one of four exceptions:

  1. My spouse is not the father of the child;
  2. My spouse, after diligent effort, could not be located;
  3. The pregnancy is a result of spousal sexual assault which has been reported to a law enforcement agency having the requisite jurisdiction;
  4. I have reason to believe that the furnishing of notice to my spouse is likely to result in the infliction of bodily injury upon me by my spouse or by another individual.

Alito saw these exceptions as eliminating any "undue burden" the spousal notification statute had on a woman's decision to have an abortion.  It doesn't take a constitutional scholar to see that this provision of the statute was designed to discourage women from seeking an abortion, given the narrow wording of the exceptions, along with the required notation that "any false statements made therein are punishable by law." 

Another decision that deserves attention is Alito's dissent in A.C.L.U. OF NEW JERSEY v. BLACK HORSE PIKE, 84 F.3d 1471 (3rd Cir. 1996). This was a public high school graduation where the students voted to have a prayer.  Alito would have allowed the prayer, saying that since majority of students voted to pray there was no "state action" involved in the Establishment of religion.  Alito:

The government practice at issue here is the highly democratic one of allowing the graduating class to vote on the issue of graduation prayer while maintaining an official stance of strict neutrality throughout the entire process.  Hence, none of the decisions made by the graduating class concerning graduation prayer can be attributed to the state and the Establishment Clause is therefore not even implicated.

One has to wonder how far Alito will go in this "majority rules" escape from the Establishment Clause.  The intent of the Establishment clause was to prevent the promotion of religion by the state.  The idea that the Establishment Clause can be overridden by having a vote deserves some real exploration.

Name: Nick Sullivan
Hometown: Upper Darby, PA
Mr. Alterman:
Concerning Planned Parenthood v. Casey, evidence in the case (I checked the rulings on Westlaw) show that more than 99 percent of women voluntarily tell/told their spouses about a planned abortion.  The Supreme Court said the remaining "one percent" still lost their right, under the rule Alito supported, simply because they were the ones affected.  Point seems to be that Alito would force those women with reasons not to inform -- those who have been beaten, threatened, etc. -- to do so.  Maybe we should make the point that 95-99 percent would not be affected, but to the right wing, that's not good enough.  Thanks for all your wonderful work; illegitimi non carborundum, as they say ...

Name: Peter Woolley
Hometown: Washington Twsp, NJ
Should a husband be informed his wife is having an abortion?  Maybe not, but the FATHER of the child should be.  Excusing extenuating circumstances, such as possible abuse, the father has a right to know what is happening with his child.  That same father is legally required to provide child support but he has no right to know his unborn child maybe aborted?  The ultimate decision rests with the woman and when in doubt the courts should favor the woman's rights but the father's rights shouldn't be dismissed.  One could even argue that it was a very liberal stand taken by Judge Alito in this case.

Name: Sasha
Hometown: Alexandria, VA
In response to Brad on Alito and the Casey case: the question is not whether it's appropriate for a wife to tell her husband she's having an abortion.  The question is whether a legal requirement unduly burdens a woman's constitutional right to have an abortion.  Of course, we hope that every married couple has a loving, intimate relationship and that they'll decide together whether and when to have children, but obviously, that's not the case.  And remember, it's the woman's constitutional, legal right to decide whether or not to give birth - not the husband's.  To make a woman tell her husband she's getting an abortion (did the law make the woman provide a permission slip to the Dr.? - ugh) gives the husband an opportunity to control the woman's reproductive system, whether she agrees or not. This just seems on the face of it to be an undue burden on the right to abortion.  Essentially the question is whether the legal requirement has the effect of potentially forcing a woman to bear a child against her will.  Is Brad in favor of that?

Name: Brad
Hometown: Arlington, VA
Dr. Alterman,
Please direct your respondents James and Isaac to the five exceptions to the notification requirement in the Pennsylvania law that was deemed unconstitutional in Planned Parenthood v. Casey.  To make it easy, the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. 3203-3220 (1990) stated in relevant part: "(a) SPOUSAL NOTICE REQUIRED.--In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion.  The statement shall bear a notice that any false statement made therein is punishable by law. (b) EXCEPTIONS.--The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following: (1) Her spouse is not the father of the child. (2) Her spouse, after diligent effort, could not be located. (3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction. (4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual. Such statements need not be notarized, but shall bear a notice that any false statements made therein are punishable by law. (c) MEDICAL EMERGENCY.--The requirements of subsection (a) shall not apply in the case of a medical emergency." Knowledge and facts are the foundation of rational debate.

Name: Jim Margolis
Hometown: San Francisco, CA
Fogerty and his attorney actually changed the law when Fogerty was sued by Fantasy.  At the time he was sued the Federal statute stated that a plaintiff who sued for infringement could recover his attorney fees if he won his lawsuit, but a defendant who won could not recover his attorney fees.  When Fogerty, as defendant, won the suit, asserting that the music was what he called "swamp rock" with a lot of twangs that may have made it sound similar to, but not the same as his other songs, he asked for his attorney fees which the court, citing the law, denied.  They appealed all the way up to the Supreme Court which ruled in Fogerty's favor, saying that the law should also protect the defendant who wins for the policy reason of protecting the creative artist who is mistakenly sued.  The case went up and down the court system several times so that Fantasy was, in the end, required to pay millions to Fogerty and his attorney.  Fortunately, Zaentz apparently used some of the money he made from CCR in the late '60s and early '70's to start producing incredible films such as One Flew Over the Cuckoo's Nest (many academy awards), Unbearable Lightness of Being (who can forget Lena Olin in the hat romping with Juliette Bineche, Amadeus (Wolfie, Wolfie), and The English Patient (many academy awards).

November 2, 2005 | 11:51 AM ET | Permalink

That was the argument, right?  If our enemy forces us to adopt tactics that betray our fundamental values, they’ve won the war whether or not they win on the “battlefield” (which, by the way, they appear to be doing also).  Well the United States Government is operating a series of police states, in contravention of its own laws as well as the laws of the nations in which it is operating.  In doing so, it employs methods of torture that are explicitly outlawed by the Geneva Conventions.  The Bush Administration, in other words, is creating an outlaw nation, subverting international law, national law, and our own Constitution.

How else to spin this?

The CIA has been hiding and interrogating some of its most important al Qaeda captives at a "Soviet-era compound" in Eastern Europe… depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions.

And note this incredible admission:

(The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials.  They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.)

Seriously, all those Soviet era Gulag guys, they gotta wonder why everybody was making such a fuss…  anyway read the Post’s big scoop on the new Evil Empire under administration operation, here , and then pick up this Times torture story, which notes, the Bush administration’s problems with Geneva Conventions prohibiting "cruel," "humiliating," and "degrading" treatment, and note the behavior of Cheney’s new Cheney:

Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions.

Makes you proud to be an American, don’t it? 

Thanks again, Ralph.

In re the Senate secret session, TAP had the story, here.

Josh Marshall, reporting in real time, here.

She’s back, here.

From J.M., Sag Harbor, to the Ethicist, here.

My old friend Richard Cohen, here, must really miss Bill Safire’s column, because here he is, channeling the brave General Sharon, man of peace, if only those nasty Arabs would learn to behave…

Elitists for Bush, here.

From Free Press

GROUPS DEMAND IMMEDIATE RELEASE OF CPB IG REPORT

On Tuesday, Common Cause, the Center for Digital Democracy and Free Press admonished the board of directors of the Corporation for Public Broadcasting (CPB) to open a closed-door meeting on the results of an investigation into wrongdoing by former Chairman Kenneth Tomlinson.  Inspector General Kenneth Konz is expected to present his findings -- which reportedly included ethical and procedural violations as well as misuse of funds -- today in a private meeting of the CPB board of directors, of which Tomlinson remains a member.  In a letter delivered to CPB Chairwoman Cheryl Halpern and President Patricia de Stacy Harrison, the groups called for the Inspector General's report to be made public immediately and criticized the board for further compounding its problems with transparency and accountability by reviewing the report in secret.
( URL includes text of letter.)

Alter-reviews:

Bobby Short was irreplaceable.  I think we can all agree on that.  But if I were the guys at the Café Carlyle, I would have made exactly the same decision they did; which was to fill the November 1 to New Year’s gap left by Mr. Short’s death with Steve Tyrell.  Tyrell spent most of his life as a producer until the makers of the Steve Martin movie figured out that he was also a terrific singer.  Why nobody figured this out before is a mystery I’ve been unable to solve.  His voice sounds a little like Dr. John with a dash of Tom Waits, but he swings like a youthful Tony Bennett.  And he has exquisite taste in music as well as a snazzy seven-piece band featuring veterans of Blood Sweat & Tears, whom he used to produce.  I like Tyrrell for following the Short tradition of giving us some historical context for the music he sings, but his patter does sometime verge too close to swinger self-parody.

And while I am on record over and over loving and admiring Texas’s musical heritage, Mr. Tyrell was really on thin ice with me last time I saw him at Feinstein’s talking about how wonderful it was to play for the current denizen of the White House.  Last night he was slobbering over Steinbrenner, whose evil aura in the room gave me a stomach ache.  (That’s all the details you get, Sully fans.)  Anyway, I don’t think George will be back, so if you’re rich and in the city in the next two months, you could do a lot worse with your massive amounts of disposable income than to spend it over dinner listening to Steve Tyrell at the Carlyle.  His new album is a Sinatra tribute and sounds just like Sinatra if he had sounded like Tyrell.  (That’s in contrast to Tony Bennett’s terrific Sinatra tribute record, which doesn’t really sound anything like Sinatra.)

I’ve also mentioned my fandom of the Wall Street Journal’s “By the Numbers” baseball column here recently, and it’s led me to find a few things of which Altercators ought to be aware.

First off, I think I’ve told people that Allen Barra’s collection “Clearing the Bases” is a really great book to have around either to pick up and read at random or settle an argument.  I didn’t know that it’s got a sequel called Brushbacks and Knockdowns, which as far as I can tell, is more of the (excellent) same thing.  (Too bad it’s got a blurb from George Will on it.)  More important to Allen, no doubt, is that you know about his massive new biography of Bear Bryant.  That’s here.  I’m not gonna read it.  I learned all I need to know about the guy in that great Namath biography last year.  But you may.  I hear George Will likes that one, too, though.

Barra’s colleague on the Journal’s sports team, Allen St. John, has also written a thoughtful and interesting book, called Clapton's Guitar: Watching Wayne Henderson Build the Perfect Instrument.  You can read about how great it is here.  A versatile bunch those Journal sports guys; I hope they don’t catch hell with their “lying-about-blowjobs-is-evil-but-about-war-and-especially-torture-is-great” bosses for being praised here.

Correspondence Corner:

Name: Isaac Luria
Hometown: University of Florida
I think Brad is missing the central point of why Alito's Planned Parenthood v. Casey opinion is so extreme.  It's not about the fact that women ought to tell their husbands if they have an abortion, it's about making it a law.  It's about keeping the government out of people's private lives.  Should a husband know if his unborn child is aborted?  Is it even his child?  Possibly forcing a women to admit to infidelity isn't what government is for.  Just because two people are married doesn't mean they don't have to same right to lie to each other that everyone else has.  How would you feel about a law that forced men to fess up to all their affairs?  I personally think it would be a good thing to do, but it's no place for government intervention.  The purpose of laws, any laws, is to protect people's rights, NOT to uphold morality (too many politicians of both stripes forget this).  And there is no constitutional right to know what your spouse is doing when he/she is not around.

Name: James
Hometown: pgh pa
In response to Brad's e-mail from yesterday.  This type of question is a well set trap, and in my opinion demonstrates a difference between some conservatives and liberals.  At first blush, you think, of course a husband should be informed if his wife wants to have an abortion. The answer is not so simple if you start to consider other factors.  These factors include: Is the husband abusive?  Is the husband the father?  Would revealing this pregnancy endanger the mother?  This is very similar to the question of parental notification of girls under the age of eighteen receiving abortions.  The first reaction of many is of course the parents should be notified.  But what if this pregnancy was the result of incest?  What if revealing the pregnancy would open the girl to horrible retribution?  These questions have no simple answer.  What they need is to be discussed rationally and thoughtfully.  Unfortunately, in today's political landscape, where a man who never changes his mind is respected, and a man who reconsiders decisions based on changing circumstances is ridiculed, the chances of such a discussion are minimal.

Name: Ed Hanson
Hometown: Commerce City, CO
Three cheers for Ben Miller of Boston, MA!  I have been saying that same thing on the blogs ever since the election and I always get shouted down by the Kerry supporters.  They're as hard-noggined as the hard core Bush supporters.  Kerry messed up.  He took a fully energized campaign away from Dean and trashed it, leaving us with Bush and everything that goes with that.  I agree with Mr. Miller.  Give it up John!  You had your shot and you blew it!  Let somebody run who really wants to win.

Name: Clif McFarland
Hometown: Los Angeles, CA
I just opened to MSNBC to access your column (which I do every day) to see a headline that reads: "Senate Schism: GOP leaders blast Democrats for closed session on Iraq intel."  We are still living in a through-the-looking-glass world.  How can it be that the story is the GOP leadership's reaction to what happened?  Why isn't the story what happened?  And why the little video sub-feature: "Frist outraged."  The story isn't Frist's reaction.  I don't believe there were headlines like: "Soviets unimpressed by U.S. moon landing" or "U.S. leadership outraged by attack on Pearl Harbor"  Help!

Name: Fred Towne
Hometown: Corvallis, Oregon
Eric:
Glad to see your review of the Concert for Bangladesh.  I remember seeing it when it came out.  Great stuff, and for me, the highlight was Billy Preston's "That's the Way God Planned It."  I had tears in my eyes.  An amazing performer.  The first time I saw Mr. Preston was in about 1964- he was about 18.  He was the bandleader for Ray Charles.  Ray would always have the band do about 40 minutes before he came out, and this was the second or third Charles concert I'd been to.  The others weren't like this one.  Mr. Preston sang, played organ, and danced his three-piece-suited ass off, and if Ray hadn't come out, well the night was a big success anyway.  Of course, Ray did come out, and so the night was sublime.

Name: Meryl Wheeler
Hometown: Brooklyn, NY
Hey Eric,
I remember being home in Palo Alto when Fogerty played those Creedence songs for the first time.  It was broadcast live and I was teary too, especially since I was hearing them again in the place I'd heard them first.  Soon afterwards I was back at work at Warner Bros. in L.A. when Fogerty (who had an office in the building) happened by my desk.  Although I made it a point never to do this around the label's artists, I couldn't help myself - I gushed all over him, telling him how moving it was to hear those songs again, and thanking him for playing them, blah blah blah.  He was very gracious about it and I'm still thankful he got over it and began playing those songs again.  And Bangla Desh - oh my God!  Such amazing performances.  Can't wait to share them with my kid...

November 1, 2005 | 1:41 PM ET | Permalink

Stirring up a hornets' nest

Scoring SCOTUS by Jeralyn Merritt of Talkleft

If President Bush intended to distract attention from PlameGate by announcing his nomination of Third Circuit Judge Samuel Alito for the Supreme Court yesterday, he succeeded.  But not in the way he intended.

While PlameGate gripped and whipped the nation's bloggers into a frenzy, it did not have the same effect on mainstream liberal organizations.  Now, just 24 hours after the nomination of Judge Alito, nicknamed "Scalito" for the similarity of his views to those of Justice Anton Scalia, liberal groups already have sprung into action.

With Alito's nomination, Bush has turned flames of dissent into a rip-roaring wildfire.  His transparent attempt to regroup from the debacle of the Harriet Miers nomination and the scandal of the indictment of Scooter Libby by caving in to the radical right through the nomination of an anti-abortion Supreme Court Justice with a troubling record on civil rights and criminal justice issues, has unleashed a maelstrom.

Why is Scalito considered so unacceptable to liberals?  To most of them, it's his proven track record of hostility to pro-choice issues and civil rights.  Think Progress has an excellent summary.  People for the American Way has both a summary and a detailed report (pdf).  Alliance for Justice and NARAL are out for bear.

Take this example from PFAW's summary of Judge Alito's views on racial discrimination in a death penalty case, in which he was reversed by the full panel of judges in his own circuit.  An African American was sentenced to die by an all-white jury.  It was found that blacks had been improperly struck from the jury.  On appeal, Alito wrote the opinion deciding against the defendant.

The full Third Circuit, in a split decision, reversed Alito's ruling, and the majority specifically criticized him for having compared statistical evidence about the prosecution's exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed.  According to the majority, "[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants..."

There will be no shortage of analysis on Judge Alito in the coming weeks.  With each nomination, liberals get more organized.  Blog aggregators will rule the day.  Here are a few to bookmark:

With Harriet Miers' nomination, Democrats were content to lay in the weeds while she self-destructed under withering attacks by the radical right and self-professed intellectual conservatives.  That will not be the case with Alito.

Bush has unleashed a hornets' nest.  Democrats will use the nomination to get their "values message" across to voters.  Liberals will use it to stomp on the radical right.  Bloggers will combine it with PlameGate as the treasonous act of the century.

In the end, Judge Alito may be confirmed.  But it will not be a crowning achievement for Bush.  It will be viewed by many as a desperate attempt to shore up support for his floundering presidency by capitulating to the radical right.  It will galvanize opposition to Republicans for the 2006 elections months ahead of schedule.  In winning the battle for this judicial nomination, Bush just may cost his party the war.

Eric adds: Thanks again, Ralph.

End Scoring Scotus

Arianna: The Crush Continues, here.

We noticed, EJ.  Um, see yesterday’s post.

White punks not on dope, here.  Someone give this Ephron woman a job in journalism somewhere, please.

Alter-reviews: George Harrison and Friends: The Concert for Bangladesh

A great wrong is finally being righted with the CD and DVD release of “The Concert for Bangladesh.”  In the first place it’s just great music.  George Harrison’s post Beatles output was head and shoulders above Paul and John’s and Dylan never sounded as good again as he did here.  (Though he still sounds pretty good in the Last Waltz, he sounds better here.)  Second, the show had enormous historic import.  It was, as the Apple guy puts it, the “first benefit concert of its kind in that it brought together an extraordinary assemblage of major artists collaborating for a common humanitarian cause — setting the precedent that music could be used to serve a higher purpose.”  But an awful lot of the money generated by the film and the multi-record set never reached the starving masses of the subcontinent, as it was ripped-off on the way.  Now, finally, via the George Harrison Estate, Apple, Kofi Annan and UNICEF, it finally will.  So buy the Deluxe edition which is packaged to look like the original, but has some extras.  And first thing you do, watch Dylan and George sing “If Not For You,” and try not to choke up a little.  You can read about all the extras here.

Someone else who has never sounded so good is the great John Fogerty, whose return to the now-Norman Lear co-owned Fantasy Records is discussed in the Times today, here.  It’s been very painful for those of us who love Fogerty’s music to see how much pain it caused him—I was at the Vietnam vets benefit where he played Credence for the first time as a gesture to the vets to help them get past their issues, and I’m a sap, but I get all teary thinking about it. Anyway, maybe a few people in rock history could come up with 25 tracks from their entire career that sound as thrilling, powerful and compelling as this.  This one belongs in the time capsule under “rock n roll.”

Just what category you put Isaac Hayes under, I’m not so sure.  But this music is a lot cooler than I remember.  Conord/Stax’s new collection, two CDs, and one short DVD, has wonderful stuff on it.  Maybe I was too young or too stupid to appreciate it back then but it’s hard not to love the guy’s versions of “By the Time I get to Phoenix” and “Walk on By.”  Shaft, of course, has always been great.  Check it out here.  (Oh and yes, it’s got that South Park thing on it, too.)

Correspondence Corner:

Name: Ben Miller
Hometown: Boston, MA
As I read through the various opinions written by Judge Alito, and wonder how much backbone the Democrats in Congress will have on this, I continue to feel angry at one person.  Surprisingly it isn't President Bush, but it is John Kerry.  Do other Democrats feel this way?  Here we had an incompetent President in a failed economy with record deficits who was ill-prepared for 9/11, failed on his promise to catch Bin Laden, lied the country into starting a war that he did not have any plan for how to win, declared Mission Accomplished in 2003, had no plan for the future in Iraq, and John Kerry lost the election.  John Kerry couldn't get his message straight, never came up with any valid explanation for his votes on the War (how about I voted for the War and when I saw how it was being mismanaged, I could not vote to give the President more funding until I got some answers that never came), failed to hit-back at the lies from the Swift Boat group, decided to inexplicably go hunting in Ohio, and not only lost the election, but now is acting as if the campaign is still going on.  As I imagine (or dread) the next 10, 15, 20 years of a Thomas, Scalia, Roberts, Alito Supreme Court, I can't help being angry at John Kerry - not only did his loss mean four more years of President Bush and his ill-conceived policies and divisive ways that are ruining this country, but his loss means decades if not more of conservative dominance of the Supreme Court.  Thanks for nothing John Kerry.  Please stop making speeches, you lost your chance.

Name: John
Hometown: Just outside of Philadelphia, PA
Mike's post reminds me of a study that said that teenagers who were involved in abstinence-only programs were more likely to engage in "alternative" sexual correspondence (3X more likely anal, 8X more likely oral) in addition to not using condoms.  So, there was likely a net increase in risky activity, and the children were engaged in the full brunt of the risk.  Of course, the part that made me chuckle about that report was how a very likely "Bush-approved" policy produced results that were decidedly Clintonian.  As for Alito, he seems to be the kind of candidate who needs to be filibustered.  Between his attempt to defang the Family and Medical Leave Act, his wanting machine guns to be sold at gun shows, and his seeming even more extreme than Rehnquist (in the context of the aforementioned F&MLA), if there's a candidate who must be stopped by any legal means, it's this one.  If Frist decides to trigger the "nuclear option," then the Democrats as a whole should just walk out.  They're going to be labeled "obstructionists" anyway by the Republicans, so why not actually do something worthwhile with that label?

Name: John DAlessandro
Hometown: Crestwood, NY
I was raised Roman Catholic in the 50's, in an educational culture dominated by the intolerant philosophies of the likes of Joe Mc Carthy and Cardinal Spellman.  Like many others, I very early on rejected this odious culture, which survives in National Review and similar publications.  You can call me a bigot if you like, but the prospect of Alito joining four other Roman Catholics on the bench -- a "Court-Packing" scheme giving the most intolerant strain of Catholic belief five out of nine votes -- is utterly abhorrent.  The Opus Dei cultists are already disproportionately over-represented in our most important court:  how about the rest of us who have accepted the Enlightenment?

Name: Brad
Hometown: Arlington, VA
Can we step back for a moment and consider the following statement "Alito attempted to uphold a provision of Pennsylvania's restrictive anti-abortion law requiring a woman in certain circumstances to notify her husband before obtaining an abortion."  While I find abortion to be morally challenged, at best, I am also a cold-hearted pragmatist who supports choice as a draconian form of voluntary population control.  However, the suggestion that requiring a wife to notify her husband that she is going to abort their child is somehow restrictive is laughable.  This was not a requirement for spousal consent, merely notification in certain circumstances.  I know that marriage means very little to a certain segment of America and that paternal rights outside of financial obligations are somehow oxymoronic to that same segment, but to assert that the husband does not even have a right to know, while the wife has the right to abort, is astounding regardless of your position on abortion (particular in light of the language of the stricken law).  For those that care, the Planned Parenthood v. Casey case (full text of opinions, not editorialized) is readily available and is interesting reading, if nothing else.

Name: RCL
Hometown: Joliet, Il
I see the spin on the Libby indictment has started courtesy of Messrs. Brooks and Safire.  The apparent line is to recognize the "serious" perjury charge, but rejoice at the fact there was no criminal conspiracy.  I was distressed, but not surprised, to see this new story line go unchallenged.  Mr. Fitzgerald's news conference made several things abundantly clear.  Valerie Plame was a covert CIA agent whose identity had been assiduously protected.  The revelation of her identity damaged not only her, but also the country.  The tortured baseball analogy made it clear the only question was one of intent and that because of Mr. Libby's conduct he was unable to uncover facts concerning that intent.  While the fact that Scooter lied his ass off certainly raises suspicion, it does not provide the substantive evidence that would be need to provide intent on the underlying charge.  So what are we left to argue?  The vice president and his chief of staff obtained classified information but never inquired as to Valerie Plame's status within the agency, even when told she was in the operations side of the CIA?  Even if you can swallow that bowling ball sized pill, it means at the very least they were either reckless or negligent in failing to ascertain her status prior to disclosing her name.  If losing a national security asset is the cost of exacting political retribution, so be it.  So while we can continue to hope Mr. Rove is revisited, the Democrats need to hammer away at the Republican message that says deceit, incompetence and betrayal are acceptable as long as they aren't criminal.  At the very least, it gives interesting context to President Bush's notion of restoring integrity to the White House.

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