New intelligence at the White House: Osama bin Laden killed

President Obama announced Sunday night that Osama bin Laden was killed in a compound in Abottabad, Pakistan:

” . . . shortly after taking office, I directed Leon Panetta, the director of the CIA, to make the killing or capture of bin Laden the top priority of our war against al Qaeda, even as we continued our broader efforts to disrupt, dismantle, and defeat his network.

Then, last August, after years of painstaking work by our intelligence community, I was briefed on a possible lead to bin Laden. It was far from certain, and it took many months to run this thread to ground.  I met repeatedly with my national security team as we developed more information about the possibility that we had located bin Laden hiding within a compound deep inside of Pakistan. And finally, last week, I determined that we had enough intelligence to take action, and authorized an operation to get Osama bin Laden and bring him to justice.”

Slightly after 1:00 a.m. Sunday, a U.S. Joint Special Operations Force attacked, and almost ten years after the attacks of Sept. 11, 2001, the man who served as icon for violent networks is gone. From an intelligence standpoint, it is regrettable that bin Laden was not captured alive. He could have been a useful intelligence source. But the pursuit and its conclusion still demonstrate what rational, effective intelligence looks like.

After bin Laden went missing in late 2001, Bush and Cheney publicly downplayed bin Laden. Bush administration emails also show little interest in bin Laden behind the scenes.

Prolonged inquiry under the Freedom of Information Act (FOIA) has produced emails between the Bush White House and offices in the Bush Justice Department. The FOIA search included email records from former Attorney General John Ashcroft; Michael Chertoff, previously assistant attorney general in the Criminal Division and later secretary of Homeland Security; former Deputy Attorney Gen. James Comey; former Deputy Attorney Gen. Paul McNulty; Philip J. Perry, acting associate attorney general and son-in-law of Vice President Dick Cheney; former Associate Attorney Gen. Jay B. Stephens; and David Ayres, Ashcroft’s chief of staff.

The Office of Information Policy, which handles FOIA requests, found emails mentioning bin Laden in the Bush administration only in Attorney General and Office of Public Affairs records. Alberto Gonzales, Bush’s first White House counsel and then Attorney General, did not use email.

White House emails from 2001 through 2008, generally reported as missing, numbered in the millions. Thousands went between the White House and top Justice officials, through government accounts and private accounts including some at the Republican National Committee.

The FOIA requests produced 26 emails pertaining to Osama bin Laden. The 26 emails between Bush’s White House and his Justice Department that mention bin Laden break down as follows:

Seven insider emails referred to bin Laden in 2001. Five were press releases from White House Press Secretary Ari Fleischer, between Sept. 24 and Dec. 17. One was a copy of Bush’s address to the Joint Session of Congress a week after 9/11 sent around by Kenneth B. Mehlman, later chairman of the Republican National Committee, in which Bush mentioned “a person named Osama bin Laden.” The other email mention of bin Laden in 2001 occurred in a forwarded newspaper article about Ashcroft.

In 2002, one email referred to bin Laden—a bogus claim, forwarded under the heading “Do you remember?,” that Oliver North warned Congress about bin Laden in the Iran-Contra hearings but was shut off by then-Sen. Al Gore. North himself denied this claim, which is debunked on Snopes.com.

Three emails referred to bin Laden in 2003—one press briefing, one forwarded newspaper article, and a statement from Director of Public Affairs Mark Corallo criticizing a records access study.

In election year 2004, fifteen internal emails mentioned bin Laden–again, only forwarded press releases, newspaper articles, or talking points, some reacting to disclosure of the famous Aug. 6, 2001, Presidential Daily Briefing titled “Bin Laden Determined to Strike in U.S.”

In short, no email archives indicate that Bush’s inside circles were interested in capturing Osama bin Laden (or Mullah Omar of Afghanistan). A talking point, not a target–bin Laden became chiefly, as we now know, a public relations tool to gear up the invasion of Iraq.

Anne Arundel Community College teaches wrong lesson: Break Maryland law and get what you want

Anne Arundel Community College teaches wrong lesson: Break Maryland law and get what you want

The unfair treatment of instructor Bert Hubinger

Colleges should not break the law.

 

AACC

Background: In Maryland, recording a private conversation requires the consent of both parties. Secretly recording a conversation falls legally under the heading of an “intercept,” as defined in “Wiretapping and electronic surveillance” in the Annotated Code of Maryland (“Courts and Judicial Proceedings, Title 10. Evidence, Subtitle 4.)

Incidents of secret videotaping proliferating

The law on being recorded in a conversation without consent varies from state to state. As shown in a number of similar or parallel incidents, numerous states permit audiotaping or videotaping a conversation, even a private conversation, if only one party to the conversation consents. Maryland, where Anne Arundel Community College is located, is not one of these states.

On March 31, AACC adjunct English professor Bert Hubinger met by prior arrangement with one of his students, Michael A. (Mike) Fowler, 38. The meeting took place in the classroom, after everyone else had left—“I don’t really have an office,” says Hubinger, who has taught at AACC since 1998—to discuss issues arising from Fowler’s conduct, including non-attendance and disruptions in class.

Hubinger was interviewed by telephone and has communicated several times by email and phone. Fowler responded to questions by messages through his Facebook page.

 

After receiving a grade of 65 on his first essay in Hubinger’s English 112 class, Fowler was “furious,” Hubinger wrote to AACC administrators, telling Hubinger that he knew better how to teach, because he taught swimming, and that he had a military background in Special Forces. Fowler’s Facebook page lists his major as psychology. Hubinger’s wife is a child psychologist. Hubinger says that he assumed Fowler had dropped the course after missing classes from March 10 to March 29, when he returned but stormed out mid-class.

The March 31 meeting was their second private talk. Fowler told Hubinger that he had complained about Hubinger to the English department chair, Ronald A. Deabreu. Hubinger wrote to AACC administrators, “He said that he had gone to DeAbreu to complain about me, and that DeAbreu’s instructions to him were to instruct me to help him catch up on all the work he had missed during his absences.” DeAbreu has not responded to a call for comment.

Hubinger, who says he “used the f-word twice,” adds that “Fowler even had the impertinence to tell me what I could say or do. That’s when I reached my limit, and cursed at him.” Hubinger says that he angrily refused to make up for the student’s missed work after being repeatedly insulted. Fowler, he says, seemed to stay calm in the individual conference despite his previous anger and disruptions. At the end of the conversation, Fowler exited the classroom, pulling his cell phone camera out of his pocket and waggling it at Hubinger, who says Fowler smiled at him and said, “Got you! Thanks!”

Fowler posted the video clip online the same day, posting it on his Facebook page, on YouTube, and at toshcommunity.comedycentral.com. He also joined the Tosh.O online community March 31, but his page at toshcommunity.com has no profile and no other postings. The video remained on Facebook Apr. 26, captioned “AACC Professor Bert Hubinger goes way to [sic] FAR!” It has since been removed from Facebook but appears on other web sites, some dedicated to practicing English.

Fowler also sent a copy of the video to DeAbreu, the English Department chair, “as a precautionary measure,” he says. He has not replied to a question whether he sent the clip to anyone else at AACC.

Under Maryland law, every further transmission of the original illegal recording is also a violation of law.

AACC Interim Director of Public Relations and Marketing Laurie Farrell, returning a call for comment, says only that the college “does not discuss personnel or student actions, or any actions, if any, taken by the college with regard to either.”

 

“I haven’t seen it myself”

Links to the video bring up the message “This video is private.” “I haven’t seen it myself,” says Hubinger. Fowler has not replied to questions whether he would allow viewing access to Hubinger, or to a journalist.

 

At Tosh.O on May 11, the video shows 92 views. Heading: “AACC Professor Bert Hubinger Uncensored!! Watch it . . .”

  • Caption: “English professor Bert Hubinger and I had a bit of a disagreement..It is a bit slow in the begining..wait for it because he GOES WAY OUT OF LINE FOR A PROFES…”

Hubinger was shortly informed by superiors that “certain people,” meaning administrators, had seen the video. He was also informed that his teaching services would not be needed in fall 2011, and his tutoring—a regular part of his job, approximately ten hours a week–was terminated immediately.

Fowler is 38 according to his MySpace page. Asked about the incident, Fowler begins cautiously: “What position are you taking with this article?”

Responding to further questions, he writes, “I posted the video shortly after the situation occured..and no the video is completely unedited..I sent a copy to the english department head as a precautionary measure.”

The audio-visual aid worked with unusual effectiveness. As stated, Hubinger was informed by superiors that he was not going to be offered tutoring or fall classes. Hubinger says that Fowler was transferred to another class.

 

Back to the law

The Maryland statute is commendably clear; see “§ 10-402. Interception of communications generally; divulging contents of communications; violations of subtitle”:

“(a) Unlawful acts. –Except as otherwise specifically provided in this subtitle [law enforcement] it is unlawful for any person to:

(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or

(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.

(b) Penalty. –Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.”

In a nutshell: An Anne Arundel Community College student broke Maryland law when he video-recorded a private conversation without the professor’s consent, broke the law again when he posted the video online, and broke it again transmitting the video to the department chair. Any administrator who then transmitted the video access to others, aside from legal counsel, also violated the statute.

That no administrator viewing the video saw fit to give the instructor himself access to it looks as snaky as the initial videotaping.

Even for a non-lawyer, it is easy to understand why school administrators refuse to discuss a matter involving personnel or a student. It is particularly easy to understand in a matter where administrators have not only the official obligation to protect others’ privacy but also the constitutional protection against self-incrimination.

But it is more difficult to understand why AACC, or any institution funded by Maryland citizens, would not have a policy of compelling its students to abide by Maryland law in the first place.

As clarified by Raquel Guillory, Public Information Officer for Maryland Attorney General Douglas Gansler, “It doesn’t matter whether a student is on campus or not, they have to abide by Maryland law. Being on campus doesn’t make them immune.” Guillory adds, succinctly, “The student issue is not an issue. If you’re in Maryland, you have to abide by Maryland law.”

 

The same principle should apply to campus administrators.

Too bad it was not applied in the Hubinger incident.

Fowler has not responded to further questions. Hubinger has filed charges with Anne Arundel County and with the State’s Attorney for AA County. “We’ll see what happens,” he says.

It will be interesting to see, going forward, what if any legal costs AACC administrators try to stick the public with. A more economical as well as more principled route in future would be to inform incoming college students of the right not to be secretly taped in Maryland, and of available channels for complaint or redress on campus.

 

To be continued

[This article, deleted by the system among hundreds of articles and blog posts in summer 2011, is re-posted using archives and Word files.]

Osama bin Laden killed, president announces

Osama bin Laden was killed in a compound hidden deep in Pakistan, President Obama announced Sunday night. Complete transcript of the president’s statement linked here. From the statement:

“Yet Osama bin Laden avoided capture and escaped across the Afghan border into Pakistan.  Meanwhile, al Qaeda continued to operate from along that border and operate through its affiliates across the world.

And so shortly after taking office, I directed Leon Panetta, the director of the CIA, to make the killing or capture of bin Laden the top priority of our war against al Qaeda, even as we continued our broader efforts to disrupt, dismantle, and defeat his network.

Then, last August, after years of painstaking work by our intelligence community, I was briefed on a possible lead to bin Laden.  It was far from certain, and it took many months to run this thread to ground.  I met repeatedly with my national security team as we developed more information about the possibility that we had located bin Laden hiding within a compound deep inside of Pakistan.  And finally, last week, I determined that we had enough intelligence to take action, and authorized an operation to get Osama bin Laden and bring him to justice.

Today, at my direction, the United States launched a targeted operation against that compound in Abbottabad, Pakistan.  A small team of Americans carried out the operation with extraordinary courage and capability.  No Americans were harmed.  They took care to avoid civilian casualties.  After a firefight, they killed Osama bin Laden and took custody of his body.”

Almost ten years after the attacks of Sept. 11, 2001, the man who served as icon for violent networks is gone.

From an intelligence standpoint, it is still regrettable that bin Laden was not captured alive. He would have been a source of useful information.

But the pursuit and its conclusion demonstrate what a rational, effective intelligence project looks like.

“Missing” White House emails retrieved from Bush administration records indicate that top Bush Justice Department officials had little interest in the pursuit of Osama bin Laden or Mullah Mohammed Omar, head of the Taliban in Afghanistan.

Under the Freedom of Information Act (FOIA), prolonged correspondence has pursued “missing” emails between the Bush White House and Bush’s attorney general, deputy attorney general, associate attorney general, Office of Public Affairs, Office of Legal Counsel and Office of the Inspector General, in the Justice Department.

After a lengthy search, President Obama’s Office of Information Policy, which handles FOIA requests, found emails pertaining to Osama bin Laden or to Mullah Omar only in Attorney General and Office of Public Affairs records from the Bush administration. Alberto Gonzales, previously Bush’s White House counsel and then Attorney General, did not use email.

White House emails from the Bush years, often reported as missing, numbered in the millions. Thousands of emails were sent between the Bush White House and top Justice Department officials, through both government email accounts and private accounts including the Republican National Committee.

FOIA inquiries have produced two emails, totaling four pages, between the White House and Justice under the former administration relating to Mullah Mohammed Omar.

The FOIA requests produced 26 emails, totaling 119 pages, relating to Osama bin Laden.

The first internal reference to Mullah Omar, according to email records, occurred Dec. 7, 2001. White House staffer Edward Ingle forwarded a series of talking points titled “Meet Mullah Omar” from Deputy National Security Adviser James R. Wilkinson to a distribution list of several dozen government personnel in Cabinet offices and the Pentagon including Paul Wolfowitz. Omar has continued to evade capture and is believed to be living in neighboring Pakistan. There is no reference in the emails to Omar dating from the period when he was evading US forces. The next, and only other, mention of Omar’s name was an incidental reference in a Sept. 23, 2004, New York Times article on Afghanistan forwarded the same day by White House staffers.

The 26 emails that mention Osama bin Laden in correspondence between the Bush White House and Justice Department break down as follows:

There were seven email references to Osama bin Laden in 2001. Five occurred in press releases from White House Press Secretary Ari Fleischer forwarded by Ingle — one Executive Order, two transcripts of press briefings and two sets of talking points — dating from Sept. 24 to Dec. 17, 2001. Kenneth B. Mehlman, then in the Executive Office Building and later chairman of the Republican National Committee, sent around a copy of Bush’s address to the Joint Session of Congress Sept. 21, 2001, in which Bush briefly mentioned “a person named Osama bin Laden.” The other mention of bin Laden in 2001 comes in an Oct. 15 St. Louis Post-Dispatch article about John Ashcroft and terrorism, forwarded by David Israelite.

One email reference to bin Laden occurred in 2002, also forwarded by David Israelite. Under the heading “Do you remember?,” Israelite distributed to colleagues, including Barbara Comstock, a description of a purported 1987 video clip saying that Oliver North warned Congress about Osama bin Laden in the Iran-Contra hearings but was shut off by then-Sen. Al Gore. This claim had already been debunked by North himself (see www.snopes.com). Comstock went on to chair Scooter Libby’s defense fund in 2007 and in 2008 ran for Congress from Virginia.

There were three email references to bin Laden in 2003 — a press briefing, a forwarded newspaper article, and a December statement from Director of Public Affairs Mark Corallo criticizing a Transactional Records Access Clearinghouse study.

Fifteen emails mentioned bin Laden in 2004. Some were in response to criticism of the White House after disclosure of the famous Aug. 6, 2001, Presidential Daily Briefing, “Bin Laden Determined to Strike in U.S.” All email references are forwarded press briefings and other press releases, forwarded newspaper articles, or talking points related to bin Laden.

The Department of Justice represents the US government in enforcing the law in the public interest. According to the official definition of responsibilities printed under a photograph of then Attorney General Ashcroft, “Through its thousands of lawyers, investigators, and agents, the Department plays the key role in protection against criminals and subversion … It represents the government in legal matters generally, rendering legal advice and opinions, upon request, to the President and to the heads of the executive departments. The Attorney General supervises and directs these activities, as well as those of the U.S. attorneys and U.S. marshals in the various judicial districts around the country.”

Either top Justice Department personnel under the previous administration were not a set of bloodhounds, or documents have been suppressed. The email archives contain no indication that inside circles in the Bush White House and DOJ were paying attention to capturing Osama bin Laden or Mullah Omar. Mentions of bin Laden and Omar come strictly in the context of public relations.

There are no records of emails to or from Alberto Gonzales, presumably because he did not have an email account.

Email records searched under FOIA include those of previous Attorney General Ashcroft; Michael Chertoff, previously assistant attorney general in the Criminal Division and later secretary of Homeland Security; former Deputy Attorney General James Comey; former Deputy Attorney Paul McNulty; Philip J. Perry, acting associate attorney general and son-in-law of Vice President Dick Cheney; former Associate Attorney General Jay B. Stephens; and David Ayres, Ashcroft’s chief of staff.

After leaving Justice, Ayres co-founded The Ashcroft Group. His corporate biography describes Ayres thus:

“After the September 11, 2001 terrorist attacks, Mr. Ayres managed the Department’s crisis operations and restructuring of the FBI to focus on preventing terrorist attacks. As the Attorney General’s principal counter-terrorism advisor, Mr. Ayres oversaw numerous counter-terrorism operations, program reorganizations and policy reforms to prevent additional terrorist attacks.”

Many persons in the Department of Justice and the executive offices of the White House had responsibilities in the “war on terror,” at least according to public pronouncements. Given all the public emphasis on “information sharing” and cooperation among law enforcement and security entities, and the speechifying against a purported “wall” between domestic and foreign information gathering, one would think there would have been extensive correspondence about bin Laden and Omar among others.

Again, either there was such extensive correspondence, and it is being suppressed; or there was no such interest in bin Laden at the highest levels of government, meaning that indeed the previous administration viewed bin Laden chiefly as a public relations tool.

What did they know about bin Laden that they did not share with the public? Were they confident, for undisclosed reasons, that he posed no threat? Why are there no expressions of concern about his whereabouts?

With this plate handed to him, it is a wonder that President Obama’s hair has not turned white already.

Margie Burns is a Texas native who now writes from Washington, D.C. Email margie.burns@verizon.net. See her blog at www.margieburns.com

From The Progressive Populist, December 15, 2009

Bin Laden, Pakistan, and corporate media narrative

With thousands of Afghanis, Iraqis, and U.S. troops killed in Afghanistan and Iraq since Sept. 11, 2001, Osama bin Laden, the fugitive icon of terrorist networks, was finally tracked down and killed in Pakistan. And not just in Pakistan, either, but in the city of Abbottabad, in the neighborhood of Pakistan’s military academy.

Let’s say this clearly, just once: Part of the unnecessarily prolonged failure to catch bin Laden, and a very large part of the tragic diversions of two bloody wars, can be laid to the account of the large media outlets in this country. Foreign policy under the Bush administration was dictated by selfish concerns, and corporate media outlets almost entirely went along. Foreign policy was influenced—to put it nicely—by politics, and politics was influenced—again, to put it nicely—by money, and the big media almost entirely went along.

Indeed, it would be more accurate to say that foreign policy, like domestic policy, was determined by political advantage—in simplest terms, money to get position, position to get money. Thus the previous administration (like others before it) bound the full faith and credit of the American public, largely without its consent and often without its knowledge, to a series of repressive regimes in the Middle East perpetually at odds with their own populations.

That this strained and upside-down affiliation was not in the best interest of the American public was spectacularly demonstrated by the official response to 9/11. Just a few outstanding and (by now) widely known facts in the public record reflect the discrepancy between Bush policy and public interest:

  • Most of the skyjackers were Saudis, yet members of the Saudi ruling family were permitted to fly out of the U.S.—actually, helped to fly out of the U.S.–immediately after the 9/11 attacks.
  • Foreign affairs experts and security experts knew that the Saudi regime was financing terrorism, yet the Bush administration enabled some of these special flights with Saudis aboard, just after 9/11, to leave from Las Vegas. Their luggage and cargo were not even searched, according to people I have interviewed.
  • Similarly, anyone with expertise in pertinent fields knew that training for violent Islamist partisans took place in Pakistan, with collusion in the Pakistani military and Inter-Services Intelligence (ISI), its secret service. Furthermore, some of the money that went to skyjacker Mohamed Atta was quickly traced to an account in Pakistan. Yet Gen. Musharraf, Pakistan’s dictator, was swiftly photographed sitting next to President Bush in the White House, a “partner” in the ‘war on terror.’
  • There were no Afghanis among the skyjackers. Yet in spite of the key facts of Saudi finance and Pakistani training, White House emphasis and rhetoric in late 2001 was all about “harboring.” Pitiful Afghanistan, whose people had little to no say in Osama bin Laden’s having been harbored there, bore the brunt of a massive U.S. assault ostensibly in response to 9/11—until the Iraq war.
  • There were no Iraqis among the skyjackers, and there was no affiliation between Iraqi dictator Saddam Hussein and Islamist partisan networks. Quite the contrary. Yet from at least 2002, the Bush-Cheney was obsessively focused on invading Iraq.

As someone said, “Why didn’t we lash out at Saudi Arabia?”

Instead, we got a narrative from the then-White House that was all about a Dr. No-type ‘mastermind,’ later enriched with anthrax—until the source of the anthrax mailings was determined to be domestic rather than exotic—and spiced up with ‘caves’ and mountain wilderness impenetrable to anyone but National Geographic photographers. And the largest media outlets, with few exceptions, went along with this Aladdin-influenced narrative every step of the way.

This is a spectacular demonstration of what can happen when news outlets (television) pay more attention to production values than to research, evidence and investigation. I said in a radio interview years ago that if just one, just one, of our three traditional television networks had had a division dedicated to research, data and investigation, the entire history of America following 9/11 would have been different. (Ted Koppel, then at ABC, soon afterward at least devoted an hour or so to reading the names of American troops killed in the war.)

This whole bloody, tragic exercise in futility is also a demonstration of what can happen when news outlets (print) pay more attention to who’s who than to research, evidence and investigation. I have always loved newspapers, but there was remarkably little appetite in the political press in our nation’s capital for close scrutiny of the Bush administration or of its policies, domestic or foreign. Access uber alles.

It’s not like they didn’t have some hints, either. Back to Pakistan and some known facts about Pakistan:

  • Gen. Musharraf, universally regarded as a dictator by any standard, attained his office in the first place through a coup d’etat.
  • Pakistan’s military and ISI openly supported partisan networks during and after the Afghani ouster of the Soviet Union from Afghanistan, receiving CIA support to do so.
  • Pakistan’s Lt. Gen. Mahmud Ahmed resigned his position at the ISI immediately after 9/11. So complete was the ISI’s lack of oversight and lack of help (for the U.S.) regarding the 9/11 attacks that Ahmed had been in the United States, visiting members of the Bush administration, on Sept. 11.

But in the major media outlets, virtually none of the information above was allowed to dilute the central Bush-Cheney narrative “We’re at war”—first with Afghanistan, next with Iraq, next if they’d been able to manage it with Syria and Iran. The narrative remained almost unquestioned, and of course actively supported by neo-cons in PNAC and elsewhere, even when Wall Street Journal reporter Daniel Pearl was kidnapped and murdered in Pakistan.

Things could have been different. I am far from being an expert on the Middle East and have spent only one month there, but even I could provide a short overview in 2001 on Pakistan’s sponsoring terrorism.* Strange how little we heard of that from Bush or Cheney, I always thought. But anyone who mentioned it in Washington was persona non grata.

Needless to say, we all make mistakes. So completely did Bush-Cheney obviate bin Laden’s existence that even I thought at one point that bin Laden was dead. Gen. Musharraf was among those who said bin Laden had been killed at Tora Bora:

“Musharraf, a Bush ally, made some of his comments on CNN. The FBI speculated openly around the same time that bin Laden was dead. So did the Pentagon.

According to “The News,” Islamabad’s main newspaper, “Fed up by the questioning [about bin Laden], the U.S. military authorities announced finally that they would stop chasing shadows and instead focus on other aspects of the so-called war on terrorism.” (“Musharraf Advised to be Less Forthcoming While Commenting on bin Laden,” Jan. 20, 2002).”

A security and intelligence expert I interviewed, Theodore Pahle, thought the same, and said so. Shortly after that, bin Laden surfaced in another video, all but explicitly displaying as an icon. This was immediately before the 2004 election. (I have thought for years that bin Laden was reading his own press. Current news on information cached at bin Laden’s hideout is reporting some heterodox schemes for attacks on anniversaries, etc.)

Daniel Pearl was killed in Pakistan, Benazir Bhutto was assassinated when she returned to Pakistan, Abu Zubaydah was captured in Pakistan. Yet the focus was always on Afghanistan, Iraq, Syria, Iran—anywhere, anywhere but Pakistan (and Saudi Arabia). Follow the little bouncing ball. President Zardari of Pakistan also speculated publicly that bin Laden was dead.

And in connection with the Bush-Cheney never-ending war, those imaginary glittering caves in Afghanistan—“poor as field mice” said a man who was kidnapped there, describing the actual inhabitants of that terrain–were replaced only with imaginary rustic huts in the mountainous border region. Aladdin replaced by Indiana Jones. This although the production values in bin Laden’s videotapes made it highly unlikely that they could have been produced in such a venue.

*A version of this article ran in the Prince George’s Journal. It, like the other Journal newspapers—a local chain in metro D.C.—no longer exists. The chain was bought out by the barking-dog rightwing Examiner company in 2004. (All the columns I had published in various Journals from 1996 to 2004 disappeared except in some sheets I saved. I was barely able to print out most of the titles before the web site was wiped by the publishers.)

Goldman Sachs shorted its own products, Senate investigation reports

Senate Permanent Subcommittee on Investigations: Goldman Sachs shorted its own products

Sen. Carl Levin intends to refer Goldman Sachs to the Justice Department and the SEC for possible prosecution and civil litigation, regarding its trading in subprime mortgage-related paper.

Goldman Sachs

The Senate Permanent Subcommittee on Investigations, chaired by Levin, released its report on the subprime lending crisis yesterday, following months of investigation into the financial debacle culminating in 2008.

Sen. Levin

“The investigation found that the crisis was not a natural disaster, but the result of high risk, complex financial products; undisclosed conflicts of interest; and the failure of regulators, the credit rating agencies, and the market itself to rein in the excesses of Wall Street.”

Among the most hair-raising instances of the latter, the report summarizes, were problems at the formerly hallowed Wall Street firm of Goldman Sachs.

Saving discussion for later, following are some pertinent passages from the Executive Summary on Goldman Sachs, one of two case studies on investment bank abuses. (The other is DeutscheBank.)

As the Subcommittee notes,

“Investment banks can play an important role in the U.S. economy, helping to channel the nation’s wealth into productive activities that create jobs and increase economic growth. But in the years leading up to the financial crisis, large investment banks designed and promoted complex financial instruments, often referred to as structured finance products, that were at the heart of the crisis. They included RMBS [residential mortgage backed securities] and CDO [collateralized debt obligation] securities, credit default swaps (CDS), and CDS contracts linked to the ABX Index. These complex, high risk financial products were engineered, sold, and traded by the major U.S. investment banks.”

Wall Street commerce in these complex packages based ultimately on ordinary homeowners’ mortgages became brisk and then became huge:

“From 2004 to 2008, U.S. financial institutions issued nearly $2.5 trillion in RMBS and over $1.4 trillion in CDO securities, backed primarily by mortgage related products. Investment banks typically charged fees of $1 to $8 million to act as the underwriter of an RMBS securitization, and $5 to $10 million to act as the placement agent for a CDO securitization. Those fees contributed substantial revenues to the investment banks, which established internal structured finance groups, as well as a variety of RMBS and CDO origination and trading desks within those groups, to handle mortgage related securitizations. Investment banks sold RMBS and CDO securities to investors around the world, and helped develop a secondary market where RMBS and CDO securities could be traded. The investment banks’ trading desks participated in those secondary markets, buying and selling RMBS and CDO securities either on behalf of their clients or in connection with their own proprietary transactions.”

This is where the plot thickens:

Two investment banks in particular, Goldman Sachs and Deutsche Bank, “illustrate a variety of troubling practices that raise conflicts of interest and other concerns . . .”

Goldman was engaged not only in selling complex derivatives, i.e. boosting them, but also in betting against complex derivatives:

“From 2004 to 2008, Goldman was a major player in the U.S. mortgage market. In 2006 and 2007 alone, it designed and underwrote 93 RMBS and 27 mortgage related CDO securitizations totaling about $100 billion, bought and sold RMBS and CDO securities on behalf of its clients, and amassed its own multi-billion-dollar proprietary mortgage related holdings. In December 2006, however, when it saw evidence that the high risk mortgages underlying many RMBS and CDO securities were incurring accelerated rates of delinquency and default, Goldman quietly and abruptly reversed course.

“Over the next two months, it rapidly sold off or wrote down the bulk of its existing subprime RMBS and CDO inventory, and began building a short position that would allow it to profit from the decline of the mortgage market. Throughout 2007, Goldman twice built up and cashed in sizeable mortgage related short positions. At its peak, Goldman’s net short position totaled $13.9 billion. Overall in 2007, its net short position produced record profits totaling $3.7 billion for Goldman’s Structured Products Group, which when combined with other mortgage losses, produced record net revenues of $1.2 billion for the Mortgage Department as a whole.”

Investment bank and investment advisor Goldman did not go the extra mile in transparency:

“Throughout 2007, Goldman sold RMBS and CDO securities to its clients without disclosing its own net short position against the subprime market or its purchase of CDS contracts to gain from the loss in value of some of the very securities it was selling to its clients.” [emphasis added]

There are four such mega-packages in particular, “four CDOs that Goldman constructed and sold called Hudson 1, Anderson, Timberwolf, and Abacus 2007-AC1.”

“In some cases, Goldman transferred risky assets from its own inventory into these CDOs; in others, it included poor quality assets that were likely to lose value or not perform. In three of the CDOs, Hudson, Anderson and Timberwolf, Goldman took a substantial portion of the short side of the CDO, essentially betting that the assets within the CDO would fall in value or not perform. Goldman’s short position was in direct opposition to the clients to whom it was selling the CDO securities, yet it failed to disclose the size and nature of its short position while marketing the securities. While Goldman sometimes included obscure language in its marketing materials about the possibility of its taking a short position on the CDO securities it was selling, Goldman did not disclose to potential investors when it had already determined to take or had already taken short investments that would pay off if the particular security it was selling, or RMBS and CDO securities in general, performed poorly.”

Taking these four packages one by one:

  • “In the case of Hudson 1, for example, Goldman took 100% of the short side of the $2 billion CDO, betting against the assets referenced in the CDO, and sold the Hudson securities to investors without disclosing its short position. When the securities lost value, Goldman made a $1.7 billion gain at the direct expense of the clients to whom it had sold the securities.”
  • “In the case of Anderson, Goldman selected a large number of poorly performing assets for the CDO, took 40% of the short position, and then marketed Anderson securities to its clients. When a client asked how Goldman “got comfortable” with the New Century loans in the CDO, Goldman personnel tried to dispel concerns about the loans, and did not disclose the firm’s own negative view of them or its short position in the CDO.
  • “In the case of Timberwolf, Goldman sold the securities to its clients even as it knew the securities were falling in value. In some cases, Goldman knowingly sold Timberwolf securities to clients at prices above its own book values and, within days or weeks of the sale, marked down the value of the sold securities, causing its clients to incur quick losses and requiring some to post higher margin or cash collateral. Timberwolf securities lost 80% of their value within five months of being issued and today are worthless. Goldman took 36% of the short position in the CDO and made money from that investment, but ultimately lost money when it could not sell all of the Timberwolf securities.
  • “In the case of Abacus, Goldman did not take the short position, but allowed a hedge fund, Paulson & Co. Inc., that planned on shorting the CDO to play a major but hidden role in selecting its assets. Goldman marketed Abacus securities to its clients, knowing the CDO was designed to lose value and without disclosing the hedge fund’s asset selection role or investment objective to potential investors. Three long investors together lost about $1 billion from their Abacus investments, while the Paulson hedge fund profited by about the same amount. Today, the Abacus securities are worthless.”

[update]

Goldman spokesman Michael DuVally returned a call for comment on the Subcommittee report and referral to the DOJ. His statement, by email:

“Margie,

As discussed.

Michael

General response:

“While we disagree with many of the conclusions of the report, we take seriously the issues explored by the Subcommittee. We recently issued the results of a comprehensive examination of our business standards and practices and committed to making significant changes that will strengthen relationships with clients, improve transparency and disclosure and enhance standards for the review, approval and suitability of complex instruments.”

On the issue of GS allegedly giving misleading testimony:

“The testimony we gave was truthful and accurate and this is confirmed by the Subcommittee’s own report. The report references testimony from Goldman Sachs witnesses who repeatedly and consistently acknowledged that we were intermittently net short during 2007.  We did not have a massive net short position because our short positions were largely offset by our long positions, and our financial results clearly demonstrate this point.””

More later

Free Speech and Attacking Social Security

Applying lessons from some of the history below, up top:

  • Regardless of the individual views of ordinary Republicans as citizens, the national party apparatus of the GOP has never ceased trying to undo Social Security;
  • The GOP-and-finance-sector daisy chain indicated below, potent as it has been in some elections, is dwarfed by current use of the federal budget deficit as a pretext to gut Social Security.

As to the budget deficit, Think Progress posted a good overview of the size of U.S. military spending. Genuine, sober-minded fiscal conservatives would be looking there for cuts.

Instead, the self-proclaimed deficit hawks of the right have, for at least the past twenty years, taken other political routes:

“USA Next,” a political interest group formerly called “United Seniors Association,” targeted seniors by hiring the same people who made the infamous Swift Boat ads of the 2004 election to make ads attacking the American Association of Retired Persons (AARP) in 2005. The hiring was reported in the New York Times Feb. 21, 2005:

“Taking its cues from the success of last year’s Swift boat veterans’ campaign in the presidential race, a conservative lobbying organization has hired some of the same consultants to orchestrate attacks on one of President Bush’s toughest opponents in the battle to overhaul Social Security.

“The lobbying group, USA Next, which has poured millions of dollars into Republican policy battles, now says it plans to spend as much as $10 million on commercials and other tactics assailing AARP, the powerhouse lobby opposing the private investment accounts at the center of Mr. Bush’s plan.”

As we know, the plan of private (Wall Street) investment accounts as a substitute for Social Security went nowhere. Public opinion of the plan was one problem; of Mr. Bush another; of Wall Street and the stock market a third.

But the campaign launched against Social Security in the blatant Bush years did not actually end.

“Though it is not clear how much money USA Next has in hand for the campaign–Mr. Jarvis will not say, and the group, which claims 1.5 million members, does not have to disclose its donors–officials say that the group’s annual budget was more than $28 million last year. The group, a membership organization with no age requirements for joining, has also spent millions in recent years vigorously supporting Bush proposals on tax cuts, energy and the Medicare prescription drug plan.

“So far, the groups dueling over Social Security have been relatively tame, but the plans by USA Next foreshadow what could be a steep escalation in the war to sway public opinion and members of Congress in the days ahead.” [emphasis added]

Make that years, and you’ve got yourself a prognostication.

As so often happens in these matters, the epicenter of evil in the known universe was northern Virginia, the hidey-hole of those gummint-hatin’ redneck-exploiting good ol’ boys who do their best to turn elections into foreordained conclusions while simultaneously turning the world of finance into a rodeo:

“To help set USA Next’s strategy, the group has hired Chris LaCivita, an enthusiastic former marine who advised Swift Vets and P.O.W.’s for Truth, formerly known as Swift Boat Veterans for Truth, on its media campaign and helped write its potent commercials. He earned more than $30,000 for his work, campaign finance filings show.

Officials said the group is also seeking to hire Rick Reed, a partner at Stevens Reed Curcio & Potholm, a firm that was hired by Swift Vets and was paid more than $276,000 to do media production, records show.

For public relations, USA Next has turned to Creative Response Concepts, a Virginia firm that represented both Swift Vets–the company was paid more than $165,000–and Regnery Publishing, the publisher of “Unfit for Command,” a book about Senator John Kerry’s military service whose co-author was John E. O’Neill, one of the primary leaders of Swift Vets.”

Chris LaCivita, for now somewhat submerged, is the political consultant perhaps most notable for making an anti-John Kerry ad that even Fox would not air. His firm LaCivita Consulting LLC is located in Richmond, Va.; his Advancing Strategies LLC in Midlothian. Stevens Reed Curcio is in the Washington, D.C., suburb of Alexandria, Va., as is Creative Response Concepts, Inc. Republicans for Choice (former advisor, Pres. Gerald R. Ford) and its PAC are or were headquartered at the same Eisenhower Avenue address, along with least one federal contractor, Logistics Applications, Inc.

As ever, an uneasy coalition of silk-stocking Wall Street-leaning Republicans, barking-dog demagogues, and the Christian right rubs shoulders together financially while fighting internally for market share, with the sincere losing every fight.

Filings for Creative Response Concepts during the Bush years were available only for 2000 and 2004—election years. Company basics: 2760 Eisenhower Av Ste 402, Alexandria, VA  22314; Pres. Gregory Mueller, Chairman Leif E. Noren, Dir. Justin D. Dudley, Dir. Curtis J. Herge.

Herge was also Registered Agent (RA), the person legally empowered to receive mail and papers for the firm. Herge’s previous business at 8201 Greensboro Drive, is located in McLean, Va., along with the more recent Elm Street address c/o Herge, Sparks & Christopher LLP, now partly morphed into the more respectable Sparks & Craig LLP.

Creative Response Concepts (CRC) had another location at 1150 S. Washington St, Alexandria 22314, where one of its neighbors was the International Brain Injury Association, which also keeps turning up in the same neighborhoods, the American branch of the association at 8201 Greensboro. (Herge is now in private practice as an attorney.)

The Virginia corporate database system listed only one officer for Stevens Reed Curcio & Potholm, RA Greg Stevens. (Stevens died in 2005 at age 58.) Stevens Reed began filing in August 1993, suggesting that its raisonne d’etre, or anyway its donor base, was connected to the hated Clinton presidency. The firm’s web site listed Greg Stevens as founder and president, with partners Rick Reed, Paul Curcio, and Erik Potholm. Potholm’s clients have included Wal-Mart, former congressman Tom Davis, and health insurance company Anthem BCBS. Anthem has since merged with WellPoint, where GWBush uncle William H. T. Bush was a director. Clients of Betsy Vonderheid, Director of Advertising, included Vornado Realty.

The entity names, be it noted, have changed with some frequency over the years. But the key personnel kept being re-mixed. Before the Bush years, Greg Stevens had already surfaced in connection with an entity called “Citizens for the Republic Education Fund,” which in 1996 raised some $2 million for GOP interests through a public relations campaign. As reported by the Annenberg Center, the tax-exempt group was among other things a client of Triad Management Services, with Stevens as a consultant. ‘Citizens’ was incorporated in D.C. by Lyn Nofziger June 20, 1996. Contact information included Angela Buchanan–sister of sometime pundit and presidential candidate Pat Buchanan–6862 Elm St, Ste 210, McLean 22101.

In 1995 Stevens worked with another likeminded group, this one called “Coalition for Our Children’s Future,” also with hdtrs address at 8201 Greensboro Drive, McLean. One of the political consultants working for the Coalition was Houston-based Denis Calabrese. The source of the funds ($700,000) for the 1996 ads was kept confidential by agreement with the donor. J. Curtis Herge was also listed as a principal in the ‘Coalition,’ which began in 1995 but went dormant until weeks before the 1996 election and then ran ads–apparently without the knowledge or consent of some principals–spending $4 million in 1995 and over $700,000 in 1996.

The Coalition for Our Children’s Future is among almost innumerable entities listed as ‘Terminated’ in the Virginia state database system: former address 7704 Leesburg Pike, Falls Church 22043; Robert P. Odell Jr, P/T; J. Curtis Herge, Secretary. Herge was also given as the RA, current at the 6862 Elm address, old at the 8201 Greensboro address (as of 10-23-97). Annual reports were filed through 2001; the firm dissolved apparently owing the Commonwealth of Virginia $35 (“Fee delinquent”).

It should be obvious from the numbers included above that such networks developed sub rosa in the nineties, reached mega-proportions in electoral influence in 2000 and 2004, went farther than ever—unsuccessfully—in 2008, and will, to say the least, try again (on steroids) in 2012. Referring to this mutual-back-scratching, one-hand-washes-the-other, one-face-to-the-public and another-to-each-other fundraising and propaganda mill populated by slick lobbyists and corporate mouthpieces as “free speech” is like using some sort of code to which only a selected few have been given the key.

Meanwhile, the fact that groups with names like ‘coalition for children’s future’ turn out to be aimed against organized labor—and to be funded by interests invested in destroying organized labor–goes almost completely unreported in the political press in the nation’s capital.

Until it’s too late.

To be continued

Free Speech and Campaign Contributions

Another in an occasional series on free speech: One person, one vote. One person, one amount.

Following up previous posts, again on the recent legal argument that money, in the context of political donations, is speech; that huge political donations are a form of political participation like other ways of participating; and that corporations are persons and can contribute just like any other persons–

As previously written, one problem is that in the context of elections, money is being treated as ‘speech’ in the courts, selectively, but speech is not being treated as money. Even celebrity endorsements, appearances by movie stars and sports figures—like Chuck Norris’s appearances for Mike Huckabee in 2008–are not treated as contributions in the sense that money is a contribution, even in the sense that an entertainment for a fundraiser event might be a contribution.

Another problem is the selectiveness with which money in politics is treated as speech or political participation. Since Buckley v. Valeo,* effectively only individual contributions of some kinds are limited by law. Money the candidate receives from someone else is a contribution, and limited; money received from self is an expenditure, and not limited.

Note: That’s in spite of the fact that contributions treated as protected expression or participation still have to be reported as if they were money.

These un-bookkeeping partitions between some kinds of receipts and others were, of course, extended by Citizens United v. Federal Election Commission, which removed limits on political funding of ‘independent’ broadcasts by corporations. Money given by an individual is limited; money given by a corporation is not limited in this context. (It might be added that few individuals could afford to fund a movie anyway; see below.)

Note: That’s in spite of the fact that a corporation can be considered a ‘person’ under the law.

Short background here, condensing for brevity—

The Supreme Court ruling in Citizens United struck down a McCain-Feingold Act provision that prohibited unions and corporations from broadcasting “electioneering communications,” i.e. a broadcast that mentions a candidate within 60 days of an election or within 30 days of a primary. The rightwing Citizens United group used this well-meant but inartful provision to attack Michael Moore. The attack on Moore failed, but the group ultimately succeeded in sweeping away some protections of the individual against corporations in our elections.

To a non-lawyer, that unique provision looks in hindsight somewhat like the regrettable incident at Brown University when a student got expelled for drunk-and-disorderly, and the right seized on the expulsion as an instance of ‘thought police’ and infringement on someone’s protected expression. The student newspaper among other sources reported what the student yelled—slurs and hate language. That content became the focus of wider reporting, and thus shifted the emphasis from the student’s conduct to the university’s purported policies. Similarly, in McCain-Feingold, we needed legal limits on money in campaigns, straight out. Instead we got limits on films. They were asking for trouble when the provision, however well-meant, got passed. The student’s misconduct got mistranslated into ‘free speech’; undue influence in our elections got mistranslated into freedom of expression and ‘political participation.’ The last refuge of the scoundrel.

In argument about campaign finance reform, the fundamentals recapped even in Buckley, which weakened reforms, are seldom quoted:

“(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.” [emphasis added]

The entire history of judicial decisions in the United States upholds the valid proposition that there is such a thing as improper influence, and that it threatens the integrity of the electoral process.

This core point is too often overlooked—intentionally, by the well-paid op-ed neo-cons who brought about, for example, the invasion of Iraq and ‘deregulation’ of public utilities.

Unlike some other writers, I think that both public financing of campaigns and genuine limits on money in campaigns can be enforced. Money leaves a trail.

To be genuine, the limits have to be direct and unequivocal:

  • Limit the individual donation, total, to a flat sum per person;
  • The limit applies, regardless of what purposes the money is specified or not specified for, in a campaign;
  • All donations have to be made by the individual as a person, regardless of whether the individual is also a candidate or a member of a group;
  • Any and all donations by a corporation acting as a ‘person’ have to be made the same way as donations by any other individual, with the same limits.

All legal donations, in short, are individual donations. And all individual donations are a constant: One person, one amount.

Movies or no movies, corporations or no corporations, the ultimate sticking point here is probably the suggested limit on individual donations. Under current election law, an individual is limited to $2,500 per election, per candidate. So a young person facing the current job market, hard-pressed to come up with $25 for a candidate he really likes, is out there ‘participating’ with the Scaife and Koch types, who could donate the $2,500 maximum to every federal candidate running in every state, in a calendar year, or who could just for fun restrict their donations to Republicans running in Texas and Florida, or to white male candidates, or to on-the-record birthers, etc.

You’d think this alone would be enough inequity to content the hard right. A poor person can vote in more elections than s/he could possibly afford to donate to; a wealthy person can donate in more elections than s/he could legally vote in. Thus, already, even setting aside all the highly relaxed limits on other kinds of campaign donations, the electoral system is tilted inexorably in favor of individual donors who can afford to give to every likely candidate for U.S. Senate and House, as did members of the Koch family in 2009-2010–and to hedge their bets, the way Goldman Sachs always used to do, by donating large sums to both major parties. A funny kind of ‘expression,’ when you think about it, not much resembling sincere and heartfelt belief . . .

Again, wealthy individuals have the massive political advantage of being able to donate thousands of times more, if they wish, than do ordinary individuals. Why isn’t that enough social inequity, even for someone politically to the right of Louis XVI?

This brings us back to that freedom-of-expression argument. Certainly, as you point out, Mr. Scalia, an individual can vote in more than one election. But there is such a thing as voting improperly, as when an individual tries to vote more than once in the same election. Allowing selected individuals to vote more than once in the same election would violate equal protection.

If political donations are a form of political expression and thus protected, then limiting them unequally is protecting them unequally. Allowing and indeed enhancing the possibility of skewed donations and influence, through expression, must be a violation of equal protection.

To be continued

* Re-post: the Supreme Court ruling that political money is in some ways speech came in Buckley v. Valeo (1976). Post-Watergate provisions of federal election law restricting campaign expenditures were challenged in court, on grounds that limits on campaign expenditures violated First Amendment clauses on freedom of speech and of association. In Buckley, the Court ruled that “The contribution provisions, along with those covering disclosure, are appropriate legislative weapons . . .”

However,

“The First Amendment requires the invalidation of the Act’s independent expenditure ceiling, its limitation on a candidate’s expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.”

Free Speech and Campaign Contributions

Update re Stephen Colbert and PAC:

www.rollcall.com/news/Stephen-Colbert-PAC-FEC-video-205563-1.html?ET=rollcall:e10287:80103659a:&st=email&pos=epol

Today, class, we will deal with that strange position of our time, the legal argument that money, in the context of political donations, is speech; that huge political donations are a form of political participation like other ways of participating; and that corporations are persons and can contribute just like anybody else. You buy—pun intended—this kind of argument? Fine. Then let’s see how it works.

[I hope that my own judgment is clear from the tone of the foregoing, but to make it explicitly clear at the outset, in my judgment money is not speech.]

Let’s set up a simple algebra equation to clarify the legal argument. In this equation, money is speech (actually, only sometimes, but we’ll get to that later):

money = speech

In this world, “Arithmetic is commutative, don’t you see,” Tom Lehrer said. If money is speech, then speech has to be money, right? Yes, I see Socrates over there in the corner, nodding his head in agreement. Good; with me so far:

speech = money

Applying this equation broadly, any citizen worth his salt can substitute a speech for the rent, can pay for groceries by talking at the cash register, can send a novella for the automobile insurance premium. It doesn’t even have to be a good speech or novella. All money of the same denomination is of equal value.

Well, no. We have to limit the speech-is-money equation to politics. If giving unlimited amounts of money to a candidate is good and acceptable, then unlimited talk to a candidate must be. Dollars, or other denominations of money, are all equal, but the more the better; therefore all speeches of the same size must be equal, but the more the better. Putting the same thing another way, if it is of value to a candidate to receive money, the more the better, then it must be of value to the candidate to receive your writing or talking, the more the better.

Or we could try the same speech-is-money equation another way. Since there is no such thing as too much money (in this construct), there is no such thing as too much speech. Coprolalia on the subway is no reason to pull someone in for mental health issues.

Again limiting the equation to politics, if money in political donations is just as acceptable in unlimited amounts, then unlimited volume in political speech must be just as acceptable. Good news for all the selfish slobs or hired provocateurs out there: no matter how loud you yell, or how much you prevent other people including the candidate from being heard, you cannot be thrown out. If it is good for individual citizens and groups to participate in the political process by discussion, then it must be even better, or at least as good, for individual citizens and groups to participate in the political process by yelling. It worked for the Brown Shirts.

Anybody still think speech, in politics, is money? –Yes, yes, Mr. Thomas. Certainly, some speechwriters are paid, the rightwing noise machine generates large amounts of money, and corporations and other entities hire spokespersons. It is easy to find examples of speech that involve getting paid. It is also easy to find examples of saying the wrong thing and then not getting paid. Since, counterfeit aside, there is no such thing as wrong twenty-dollar bills (look up your notes on denominations, above), that’s not looking like a good line of argument. One could go farther on your side of the argument, and bring up the old saying that time is money. Sending money saves the candidate time; sending the candidate your wisdom in words might save him or her time, again depending on content. But once again, all Jacksons and Benjamins are of equal weight.

By the way, the Supreme Court has consistently upheld financial disclosure requirements set by Congress. A federal candidate who receives money is supposed to report it. If the equation of speech to money were applied consistently, a candidate who received your verbal wisdom would be required to report that.*

We agree, one hopes, that even in politics, speech is not money.

speech [not equal to] money

In algebra, the simple equation is commutative: Speech is not equal to money; therefore money is not equal to speech.

money [not equal to] speech

The Supreme Court ruling that political money is in some ways speech came in Buckley v. Valeo (1976). Congress in 1971 had passed the Federal Election Campaign Act, attempting to require public disclosure of financial contributions. From the Federal Election Commission (FEC):

“Following reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs. The 1974 amendments also established an independent agency, the Federal Election Commission (FEC) to enforce the law, facilitate disclosure and administer the public funding program.”

Among other provisions, the 1974 law prohibited political donations from foreign nationals; donations from federal contractors—although individual employees of contracting companies could still donate, up to the legal limit; and direct donations from corporations, labor unions and national banks—although individuals in those entities could donate. It also set legal limits on individual donations, now $2,400 per person, on campaign committee donations, and on how much a candidate could spend of his own money.

This law was challenged in court by plaintiffs including former GOP Sen. James L. Buckley and former Democratic White House candidate Sen. Eugene McCarthy, who probably got rolled. The argument was raised that limits on campaign expenditures violated First Amendment clauses on freedom of speech and of association. In Buckley, the Court said some yeses, some no. Specifically:

“2. The Act’s contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. Pp. 12-59.

(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. Pp. 23-38.

(b) The First Amendment requires the invalidation of the Act’s independent expenditure ceiling, its limitation on a candidate’s expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. Pp. 39-59.”

If you get money from someone else, it is a contribution; if you get it from yourself, it is an expenditure. Reasonable enough, certainly—but not much like ‘expression.’ Try the money-is-speech equation here. If someone else talks to you, it is speech, but if you say something, it is not? If you give money to someone else, it is money, but if you give it to yourself, it is a different kind of money? Campaign law generally requires disclosure of “received” and “paid,” with contributions to self or contributions from outside groups, etc., falling into the “received” column.

Regardless of validity, however, at least the self-versus-other construct is simple and consistent, maybe with some touching hope of mapping onto the ancient meum and tuum. But when corporations and outside interest groups get the limits lifted on them, even that distinction is no longer colorable.

To be continued

Note: Eight justices participated in Buckley. Mr. Justice Stevens did not participate.

*Generally candidates are required to report in-kind contributions. If an expert speechwriter, for example, were to produce speeches for a candidate gratis, the candidate should report same. But in-kind contributions are reportable only if they have value—monetary value. So if you call speech money, then you’re in the odd position of saying that some money is not money. This gets close to saying that if the candidate loses anyway, then no reporting requirement applies. Theoretically we apply the law to all candidates, win or lose. Otherwise it is not law.

Free Speech and Brown University

This 1991 case—a student, Douglas Hann, expelled from Brown University for drunkenly shouting abusive epithets, in the small hours, not a first offense—should never have gotten to the court of public opinion. The student was drunk and disorderly, shouting on university grounds in the small hours of the morning, for which the university was authorized to discipline him and to try to prevent recurrence. The only additional component, employed to make the incident seem murkier than it was, is that he was also yelling ugly things designed to hurt other people’s feelings or to provoke antagonism.

The following comes from the contemporary New York Times report:

“The incident that has again focused attention on these policies occurred about 2 A.M. last Oct. 18. According to a witness and reports in the campus newspaper, Mr. Hann, who was celebrating his 21st birthday, and several members of his [Delta Tau Delta] fraternity were walking down Brown Street to Keeney Quad, a freshman dormitory. Mr. Hann started shouting anti-black comments involving a common obscenity and the word “nigger.” The remarks did not appear to be directed at anyone, the witness said.

When a student in the dormitory opened his window and shouted “Keep it down,” Mr. Hann reportedly shouted “What are you, a faggot? What are you, a Jew?” and an obscenity.

The dormitory student gathered some friends and confronted Mr. Hann. The obscene and biased remarks continued until Mr. Hann was pulled away by his friends. The dormitory student later filed a complaint with the disciplinary council.” (Feb. 20, 1991)

The content of his expression, if you call it that, is not necessarily the chief disciplinary issue. If he had been screaming—in the small hours—lyrics he’d composed to one of the Brandenburg Concerti, or reading a Nat Hentoff column at the top of his voice, the drunk-and-disorderly component of the offense would have been the same. His disruptive behavior would still be subject to discipline, even if the ‘free expression’ was not. The only additional component here is that he was yelling things designed to hurt someone else’s feelings.

“The council, composed of students, faculty and administrators, found Mr. Hann guilty of violating several aspects of Brown’s code of student conduct, specifically the sections involving disrespectful or drunken behavior and those prohibiting racial, sexual and ethnic harassment.

In evaluating the complaint, the council also considered an earlier incident at a 1989 fraternity party in which Mr. Hann called a black student a “nigger.””

There are a couple of further points here. For one, it might be noted that the Times report focuses less on the student’s conduct than on the university’s policies. Here is the lede:

“Douglas Hann may have thought he was just blowing off steam when he shouted abusive words at fellow students at Brown University last fall, but to others his words constituted harassment.

In any case, he was expelled last month, and the incident drew attention to a growing controversy on campuses about codes of behavior that guard civil rights by limiting freedom of speech.”

Given this spin—including the author’s speculation on the student’s thoughts—the article provided an example followed by rightwing commentators surprisingly eager to adopt the much-reviled New York Times as a model. So much for that individual responsibility we hear so much about.

For another, neither social scientists nor the Christian right usually characterize the behavior or expression of someone under the influence of alcohol or drugs as ‘free,’ but the rightwing periodicals/authors eager to beat the drum against universities still adopted this case as a matter of ‘freedom of speech’ on campus. The whole Hann matter is yet another reminder that our friends on the right tend to be strangely absent when issues like binge drinking on campus, or rape on campus, are being addressed. Perhaps their lobbyist funders do not back, or launch, astroturf movements involving health issues endangering the lives of young people.

In any case, this was no example of political guerrilla theater. Hann was not expressing offensive ideas (or any ideas) in the classroom, or in other structured discussion where they should be protected, along with non-violent responses to them. This was on-campus behavior that interfered with the university’s mission of teaching, by adversely affecting the student’s own ability to learn and that of other students around him. Narrow though it might seem to defend education this way, those students did have a contractual right to the education paid for, and the goods and services known as education would be harmed by an official policy of permitting chemically induced disruption. The fraternities themselves regularly join in on calls for discipline and anti-substance abuse measures, and most people wish they received more.

Protected expression may be a challenging topic when it involves unpleasantness or offensiveness, but it is not irreclaimably murky. People have a right to burn ‘the flag,’ meaning a flag, so long as they go out and procure a flag. But no one has the right to come onto your front porch and burn your flag—the flag that is physically yours as well as symbolically yours.* Symbolic ownership is an ownership of expression, and is protected as such for everybody, for those who downplay it, for those who exalt it, and–regrettably—for those who exploit it. Your material ownership of your own flag is protected not in the abstract but in actuality; someone who wants to steal your own flag off your front portico, if only for the purpose of kissing it and waving it at the next parade, is prohibited from doing so. The act of taking your flag is no longer expression; it is theft or vandalism, regardless of whether the taker wants to wave it or to burn it.

A better analogy is some other transaction involving purchase and gesture. Suppose a consumer purchased a garment at some local store, which was then grabbed and stomped on by a drunk, yelling offensive epithets or derogatory remarks against some group, or conversely yelling a highly enlightened critique of consumerism. The remarks would be protected; the grabbing not. No one has the right to rip off your shirt or necktie, even if the latter is that ultimate social ill the clip-on, unless you want her to; expressions about consumerism are protected, but grabbing your textiles becomes something other than expression, like vandalism or theft or assault. Ditto for someone who marks on your clothing without your consent, regardless of the content of the markings.

Call it the Marks-a-Lot analogy

Let’s set aside the hypothetical instances for a real-life example: Mel Gibson engaged in a drunken rant of constitutionally protected content, but he still got sanctioned for his traffic violations. Only the most extreme outlier type of ‘libertarian’ would say (openly) that Gibson had a natural right to drive drunk. Similarly, prostitution may be regarded as a social ill, but nobody has a god-given natural right to become Jack the Ripper; the act of killing transgresses the bounds of expression and becomes murder. Nor does one have a right to rape or to gang-attack a heavy-dating teenager or a sexually active woman or man, even with knowledge or disapproval of her/his social life. Expression is one thing; assault is another.

Expression is protected; violent or invasive actions that may as a by-product ‘express’ something, even something in itself laudable or understandable, are not. If they are violent or invasive of other people’s rights, they are prohibited.

From the Times account again:

“Even some of Mr. Hann’s fraternity brothers called what he did indefensible. But one, a wrestler from Long Island who refused to give his full name, said Brown students had to live under so many restrictions that great tension is created.

“It’s like this place is some special world where there is no such thing as racism,” he said. “Doug just got drunk and exploded.””

The question of where to draw the line between permitted expression and prohibited action is a judgment call, but less difficult to settle in the actuality than it might sound in the abstract. A guy who quotes a rape ‘joke,’ even with a smirk, in the classroom is constitutionally protected. So are the responses. But a guy who targeted a particular individual, or who raised his voice, or who kept up the ‘joking’ in a repeated pattern, has clearly gone beyond expression into harassment or intimidation. The university has to do its duty by a troubled student and by the campus community. The question is how best to do what it is supposed to do.

In this case, Brown’s administration would obviously have been luckier if the drunk-and-disorderly incident had not included a prejudiced rant, the contents of which led inevitably to more rightwing accusations of campus “thought police.”** Unfortunately, that observation leads to the conclusion that if you are determined to get away with drunkenness or other unpleasant behavior, you would be wise to couple it with racist or other ideologically protected language. You are beginning to sound like rather a snake. Fortunately, you are no longer a snake when drunk; the student might well not have been reported by his peers if he had been less insulting to them. In vino veritas, not, but your underlying personality problems will expose themselves if you drink to excess.

Generally that perpetual rightwing stance of calling administrative actions ‘thought police’ or Big Brother gets weird. Universities exist to affect people’s thought. That is their reason for being. The claim that a university has no right to do what it is supposed to do is Orwellian.

The response to the Times report, from Brown University’s then-president, Vartan Gregorian, makes points similar to some above:

“”The Tenets of Community Behavior,” which outline community standards for acceptable behavior at Brown, have been read for more than 10 years by entering students, who agree in writing to abide by them.

The rules do not proscribe words, epithets or slanders; they proscribe behavior. The point at which speech becomes behavior and the degree to which that behavior shows flagrant disrespect for the well-being of others (Offense II), subjects someone to abusive or demeaning actions (Offense III) or is related to drug or alcohol use (Offense IV) is determined by a hearing to consider the circumstances of each case. The student is entitled to an appeal, which includes review by a senior officer and a decision by the president.”

Given Brown’s notable free-speech heritage, the echo chamber attacks may be an example of the tactic, often attributed to former Senior White House Advisor Karl Rove, of attacking your opponent’s strong point.

*Actually, I have to admit that although I am a patriotic American, I would feel a twinge even at seeing the flag of some other nation burned. There would be some back-of-the-mind apprehension that I was being played, along with the gut reaction, This is cheap. People don’t always like to have their gut feelings played on, either with an overt appeal to patriotism or the reverse.

**To this day, Brown is under fire from right-wing thought-police hit squads including the appropriately named FIRE, for its (reasonable) policy on sexual harassment. Brown, of course, is a private university, making forays into its individual marketplace of ideas by the rightwing echo chamber less than consistent with conservative ideology.

Richard Helms, unsung hero re Iran?

Richard Helms unsung hero re Iran?

 

Shah of Iran

As previously written, part of the long shadow cast by foreign policy in the Nixon administration has come from Nixon, Kissinger and Gerald Ford’s unwillingness or inability to understand domestic unrest in Iran. In a reciprocal cause and effect, their intransigent unwillingness in the 1970s to acknowledge the extent of the Shah’s unpopularity among his own people corresponded to their unwillingness to make U.S. policy toward Iran genuinely reflective of American interest.

The release of embassy cables by wikileaks casts new light on U.S. relations with Iran in the 1970s, with the unexpected twist of a new unsung hero for the epoch, Ambassador Richard Helms.

 

The condensed version of this story is that former Director of Central Intelligence Helms apparently learned something from the shameful CIA episodes in Cuba, Vietnam and Chile. Better late than never, although as Bob Haldeman might have put it, “TLsub2”—too little, too late.

The Nixon administration’s coziness with the Shah of Iran, little publicized by Nixon’s people at the time, has already been highlighted by a February 1972 cable from the U.S. ambassador in Iran urging that a shipment of fighter planes for the shah be expedited. Such friendly overtures to the shah were not impeded by ample warning from the U.S. embassy that the shah was under attack by his populace.

Predictably, this alliance between administrations of two countries disconnected from their people came to a head in a foreign policy disaster, a disaster which seems to have been foreseen by Helms.

In a lengthy cable on March 4, 1975, Helms warned Washington of the trouble brewing in Iran. This, be it noted, was the period when the White House was occupied by President Gerald Ford, the man who famously said in debate with Jimmy Carter that the Soviet Union did not dominate Eastern Europe.

Helms’ cable, declassified by the State Department, is crisp, clear and to the point, refreshingly clear of cant about our friends on or near the Peacock Throne. Helms summarizes the shah’s light-bulb idea of creating a one-party system as it deserves:

ALL IRANIANS OF VOTING AGE ARE EXPECTED TO EXPRESS ALLEGIANCE TO NEW PARTY OR RISK BEING VIEWED AS OPPONENTS OF SHAH AND EVEN TRAITORS WHO SHOULD LEAVE IRAN OR GO TO PRISON. SHAH EXPLAINED IRAN’S RETURN TO SINGLE PARTY SYSTEM AS NECESSARY BECAUSE QTE SHAMEFUL UTTERANCES UNQTE BY SOME IRANIANS SHOWED NEED FOR IRANIANS TO CLOSE RANKS IN EFFORTS TO ACHIEVE QTE GREAT CIVILIZATION, UNQTE AND BECAUSE OPPOSITION PARTIES HAD FAILED. ELECTIONS SCHEDULED FOR SUMMER WILL APPARENTLY BE HELD, BUT IT IS NOT CLEAR HOW THEY WILL BE ORGANIZED. NET RESULT IS TO MAKE IRANIAN POLITICAL SYSTEM LESS FLEXIBLE. INTERNATIONAL REACTION

WILL PROBABLY RANGE FROM INDIFFERENCE TO CHARGES OF INCREASED TOTALITARIANISM.

 

Further enhancements of dictatorship are clearly in the offing:

SHAH’S LENGTHY STATEMENT AT HIS MARCH 2 PRESS CONFERENCE, FROM WITH CORRESPONDENTS FOR FOREIGN MEDIA WERE EXCLUDED . . . ESTABLISHED IRANIAN RESURGENCE PARTY. NEW PARTY WILL

ABSORB RULING IRAN NOVIN PARTY, LOYAL OPPOSITION MARDOM PARTY, AND THE ULTRA-NATIONALIST PAN IRANIST PARTY AND ITS SPLINTER GROUP THE IRANIANS PARTY. PRIME MINISTER HOVEYDA IS TO BE SECRETARY GENERAL FOR A PERIOD OF AT LEAST TWO YEARS. SHAH WILL LATER PROPOSE CHAIRMAN OF NEW PARTY’S EXECUTIVE BOARD AND PRESIDENT FOR ITS POLITICAL BUREAU.

 

The picture does not get any sunnier as the shah and Helms continue:

ONLY REQUIREMENTS FOR MEMBERSHIP IN NEW ORGANIZATION WOULD BE LOYALTY TO (1) MONARCHY, (2) IRAN’S CONSTITUTION, AND (3) SIXTH OF BAHMAN (SHAHPEOPLE) REVOLUTION. . . HE URGED ALL IRANIANS ELIGIBLE TO VOTE TO ENTER INTO NEW POLITICAL STRUCTURE OR CLARIFY THEIR POSITION. BY THIS HE MEANT THAT THOSE WHO COULD NOT AGREE WITH THE THREE PRINCIPLES SHOULD LEAVE IRAN OR GO TO PRISON AS TRAITORS UNLESS THEY OPENLY EXPRESSED THEIR DISAPPROVAL AND WERE NOT ANTINATIONAL. IF DISAPPROVAL IS IDEOLOGICAL, PERSON WOULD REMAIN FREE

IN IRAN BUT QTE SHOULD NOT HAVE ANY EXPECTATIONS UNQTE. FULL PARTICIPATION IN IRAN’S PROGRESS WOULD OBVIOUSLY REQUIRE MEMBERSHIP IN THE IRAN RESURGENCE PARTY. HE SAID IT WAS HIS EXPECTATION THAT WORKERS, FARMERS, AND TEACHERS WOULD BE THE FIRST GROUPS TO ANNOUNCE THEIR LOYALTY TO THE NEW PARTY.

Helms’ comment is trenchant:

COMMENT: ABOVE ALL, SHAH’S ACTION IN RETURNING TO SINGLE PARTY SYSTEM OF 1964-67 PERIOD SHOWS HIS EXTREME SENSITIVITY TO CRITICISM AND STRONG DESIRE TO RECEIVE OVERT EVIDENCE OF POPULAR SUPPORT. AFTER HE EXPERIMENTED WITH TAME OPPOSITION PARTIES IN 1956-64 PERIOD WITH POOR RESULTS, SHAH THEN TURNED TO HASSAN ALI MANSUR’S PROGRESSIVE SOCIETY TO CREATE IRAN NOVIN PARTY AS INSTRUMENT TO IMPLEMENT HIS SIXTH OF BAHMAN REVOLUTION. MARDOM PARTY WAS SUBSEQUENTLY REJUVENATED TO STIMULATE IRAN NOVIN TO PERFORM MORE EFFECTIVELY. DESPITE CONSTANT STATEMENTS OF LOYALTY TO SHAH AND HIS PLANS FOR IRAN, PARTIES HAVE APPARENTLY NOT PLEASED HIM.

. . . EVEN ACTIVITIES OF GELDED OPPOSITION HAD PROVED TOO CRITICAL FOR SHAH’S TASTE. NEVERTHELESS HIS PAST STATEMENTS INDICATED CONTINUING SUPPORT FOR COCCEPT OF MULTI-PARTY SYSTEM IN IRAN, AND IMPERIAL DECISION TO INSTITUTE ONEPARTY STATE REPRESENTS 180-DEGREE SHIFT IN POLICY WHICH ALSO APPEARS TO NEGATE EARLIER PROMISES OF FREER ELECTIONS LATER THIS YEAR. KEY SECTION OF SPEECH IS COMMENT THAT HE HAD HEARD QTE SOME REALLY SHAMEFUL UTTERANCES, WHICH IN NOW WAY SHOULD BE EXPECTED FROM AN IRANIAN. THIS SCENE, OF COURSE, HAS ALWAYS RECURRED WHEN IRAN HAS BEEN ENGAGED IN THE DEFENCE OF ITS RIGHTS AT A HISTORIC JUNCTURE. THIS SITUATION IS INTOLERABLE, UNQTE UNDER THESE CIRCUMSTANCES WE DOUBT THAT MUCH CONSTRUCTIVE CRITICISM WILL EMERGE FROM THE IRANIAN RESURGENCE PARTY.

The conclusions are sadly prescient:

IN OPERATIONAL TERMS LITTLE HAS CHANGED, FOR DESPITE FACADE OF QTE ME-TOO UNQTE OPPOSITION PARTIES SHAH HAS ALWAYS CALLED THE TUNE AND ONLY RULING IRAN NOVIN PARTY HAD ANY IMPORTANCE. PRIME MINISTER HAS BEEN LEAD DANCER, AND HIS SELECTION AS SECGEN AT JANUARY PARTY CONGRESS HAD TIED IRAN NOVIN PARTY EVEN CLOSER TO SHAH. IMMEDIATE CONSEQUENCE OF NEW MOVE HAS BEEN FLOOD OF STATEMENTS OF LOYALTY TO SHAH, CONSTITUTION AND REVOLUTION, BOTH BY GROUPS AND INDIVIDUALS. THERE IS CLEARLY NO VIABLE ALTERNATIVE FOR

IRANIANS WHO WANT TO PARTICIPATE ACTIVELY IN IRAN‘S DEVELOPMENT AND SHARE ITS PROSPERITY. ALL DIFFERENCES OF VIEW ON HOW TO IMPLEMENT SHAH’S PLAN FOR IRAN WILL BE SUPPRESSED UNTIL NEW PARTY DEVELOPS AN IDEOLOGY AND ITS LEADERSHIP IS CONSTITUTED.

 

INTERNATIONAL REACTION WILL PROBABLY VARY FROM INDIFFERENCE TO INCREASINGLY SHRILL CHARGES OF TOTALITARIANISM. IRAN’S IMAGE AS COUNTRY IN WHICH ALL ELEMENTS WERE BEING TAPPED IN DEVELOPMENT PROCESS MAY SUFFER UNLESS NEW PARTY’S MEMBERSHIP COMES FROM BROAD SPECTRUM. IT APPEARS THAT EARLIER SUCCESSFUL IRANIAN POLICY OF COMPROMISE AND COOPERATION HAS BEEN REPLACED BY QTE TAKE IT OR LEAVE IT UNQTE STANCE IN DEALING WITH OPPOSITION.

IN SUM, GIVEN EXISTING STRICT DEGREE OF POLITICAL CONTROLS, SHAH’S DECISION TO MELD ALL POLITICAL PARTIES INTO ONE APPEARS TO OFFER LITTLE IN WAY OF IMPROVEMENTS TO IRANIAN POLITICAL SYSTEM WHILE ADDING SEVERAL DISADVANTAGES BOTH DOMESTICALLY AND INTERNATIONALLY.

 

Note:

Newly released tapes continue to disclose Nixon’s problems with ethnicity in the U.S. They have long been written about, notably in the vibrant and colorful How the Good Guys Finally Won, by Jimmy Breslin. Breslin’s touching narrative about Italian-American congressman Peter Rodino (D-N.Y.), an honorable man, is worth reading on its own.