The NYT's buried Miller ledes.

The NYT's buried Miller ledes.

The NYT's buried Miller ledes.

A mostly political Weblog.
Oct. 18 2005 4:56 PM

The NYT Miller Revelations

Preposterous speculation got us this far ...

Instapundit's Katrina/Rita Relief donation list.


Was Judith Miller just a fan of the Starlight Mints? See track #5. ... 1:26 P.M.

Subtle tonal nuance detected: The fourth-to-last and third-to last paragraphs in the NYT's Judith Miller takeout--

She said she thought she would write a book about her experiences in the leak case, although she added that she did not yet have a book deal. She also plans on taking some time off but says she hopes to return to the newsroom.

She said she hopes to cover "the same thing I've always covered - threats to our country." [Emph. added]

"Hopes"? "Hopes"? Why of course she'll return. You'd think the Times editors would have paid close attention to the wording here. Don't they hope she'll return? She's the paper's triumphant First Amendment hero! Why wouldn't she return? ... She'll be coming back, right? ... Right? ...  Backfill: Greg Mitchell pointed to "hopes" on 10/15. ...12:19 A.M. link


Frank Rich Escapes TimesSelect Ghetto: Frank Rich's Miller-Plame column appears to be  available for free  on the New York Times Web site, even for those who haven't subscribed to the paper's TimesSelect service. As T.M. notes, "Maybe Times Select is only for the unimportant pieces." ... P.S.: When it was launched, TimesSelect promised:

exclusive access to 22 columnists of The Times and the IHT, including online dialogues with Thomas L. Friedman, Paul Krugman and Frank Rich ...

Hmmm. Read that sentence closely and you realize that for $49.95 you've only really been offered "exclusivity" with respect to the "online dialogues," not the actual columns. Where is Elliot Spitzer when you need him? ...[I asked for "link-rich copy," not Rich-link copy, you moron-ed.] ...  Update--Back to your cell, pundit! The non-subscription Rich link is now dead. ... During its heady hours of freedom, Rich's column visited the Huffington Post  and took in a Broadway show. It was re-apprehended in a strip club near Times Square. ... P.P.S.: Meanwhile, Rich's fellow columnist Thomas Friedman did not seem too happy with TimesSelect in this passage from Howie "Stretch" Kurtz's "Reliable Sources" show:

[O]ne of the greatest things about "The New York Times" online is I got to reach an audience that just was exponential to what you got in the dead-tree edition of "The New York Times." And I particularly -- because I write about international affairs, so I got a lot of young people in India and Egypt and what not. And for them, $50, that may be their -- that may be their tuition for half a year. So I honestly am torn. I really hope this works, because I want "The New York Times" to have a platform that is sustainable. But at the same time, I hope we can eventually find a way to re-engage those people, because definitely, we've lost some of them. [Emph. added]


[thanks to S.K.]12:51 P.M.

Fitzgerald's Choice: If, like me, you often find yourself lost in the tedious underbrush of the Plame story, this Maguire post--unlike some other Maguire posts!--provides a clarifying template. ...12:32 P.M.

1. Preposterous blog speculation congealed into conventional wisdom  that turned out to be wrong: The idea that NYT reporter Judy Miller toldCheney aide Libby that Bush critic Joe Wilson's wife worked at the CIA, rather than vice versa.


2. Preposterous blog speculation congealed into conventional wisdom that turned out to be right: The idea that Libby seemed to be coaching Miller in his infamous 'aspens are turning' letter, which noted pointedly that other reporters had testified "they did not discuss Ms. Plame's name or identity" with Libby. Special prosecutor Fitzgerald actually asked Miller about this possible coaching, and Miller says the thought occurred to her too:

I replied that this portion of the letter had surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity.

In the event, while Miller's notes undermined Libby's claim that he didn't discuss her "identity," she certainly seems to have done the best job possible of minimizing the connection between Libby and Plame's name, given its appearance in those notes.  The aspens may have intertwined roots after all.

3. Did Judy's lawyer scam the special prosecutor? According to the NYT, Miller's lawyer,

Mr. [Robert] Bennett, who by now had carefully reviewed Ms. Miller's extensive notes taken from two interviews with Mr. Libby, assured Mr. Fitzgerald that Ms. Miller had only one meaningful source. Mr. Fitzgerald agreed to limit his questions to Mr. Libby and the Wilson matter.


But a key question is who told Miller the name "Valerie Plame," which she miswrote as "Valerie Flame" in her notebook. Miller says she's not sure it was Libby. Therefore it might have been someone else--i.e. she might well have had another very "meaningful" source, contrary to Bennett's alleged representations to the prosecutor.  Am I missing something, or does Fitzgerald have grounds for being extremely p-----d off? (Arianna  also makes this point.)

4. Why is Pinch ashamed?

"Maybe a deal was possible earlier," Mr. [NYT publisher Arthur] Sulzberger said. "And maybe, in retrospect, looking back, you could say this was a moment you could have jumped on. If so, shame on us. I tend to think not."

Of course a deal was possible earlier. That seems fairly obvious reading the NYT's account.  But why should Sulzberger feel shame if that was the case? Surely his position is he was upholding a valuable principle and sometimes there are misunderstandings that delay a resolution when you are trying to figure out whether a source's seemingly uncoerced "waiver" is really, truly uncoerced. (Especially when you don't want to "hound" him!) Or is Pinch really ashamed because  ....


5. Isn't this a major blow against testimonial immunity for reporters, in practice? Here is how the NYT itself reported the final argument made on behalf of Judith Miller before she was jailed:

Robert S. Bennett, a lawyer for Ms. Miller, urged Judge Hogan to conclude that Ms. Miller would never talk, making confinement pointless.

It's now clear confinement wasn't pointless. It worked for the prosecutor exactly as intended. After a couple of months of sleeping on "two thin mats on a concrete slab," Miller decided, in her words,  "I owed it to myself" to check and see if just maybe Libby really meant to release her from her promise of confidentiality. And sure enough-- you know what?--it turns out he did! The message sent to every prosecutor in the country is "Don't believe journalists who say they will never testify. A bit of hard time and they just might find a reason to change their minds. Judy Miller did." This is the victory for the press the Times has achieved. More journalists will now go to jail, quite possibly, than if Miller had just cut a deal right away, before taking her stand on "principle."

6. Does Howie Kurtz have support for his lede? CNN/WaPo media critic Howie Kurtz, covering the Miller story for Post, begins his account with these paragraphs:

Vice President Cheney's chief of staff discussed with New York Times correspondent Judith Miller the fact that the wife of a White House critic worked for the CIA on as many as three occasions before the woman, Valerie Plame, was publicly identified, according to a Times account published today.

During one of the 2003 conversationswith I. Lewis "Scooter" Libby, Miller said, she wrote a version of Plame's name in her notebook. [Emph. added]

Huh? Did Miller really say she wrote a version of Plame's name in her notebook during a conversation with Libby? Not if the version in question was "Valerie Flame."  Miller says explicitly

[a]s I told Mr. Fitzgerald, I simply could not recall where that came from, when I wrote it or why the name was misspelled. [Emph. added]

The other time Miller wrote a version of the name ("Victoria Wilson") in her notebook came in July, when she had a phone talk with Libby. Here is her account:

I told Mr. Fitzgerald I believed that before this call, I might have called others about Mr. Wilson's wife. In my notebook I had written the words "Victoria Wilson" with a box around it, another apparent reference to Ms. Plame, who is also known as Valerie Wilson.

I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.

I also told the grand jury I thought it was odd that I had written "Wilson" because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess. [Emph. added]

Does Miller here admit to writing the name during the Libby conversation? Not as far as I can see. In the first paragraph, she seems to suggest she might have written the name down before the call began ("had written"). ... P.S.: Maybe Kurtz can be excused for being a bit sloppy or for exaggerating the evidence in his lede. After all, he had a big CNN show to plan! ... 3:12 A.M. link

If only professional journalists get extra speech privileges, is that an Equal Protection violation? I've received several emails along the following lines:

Only "suspect classes" can assert an equal protection challenge.  Or, more correctly stated, only suspect classes stand much chance of winning.  Suspect classes include race, gender, ethnicity, etc.  Poor people are not a suspect class.  ... So I'm guessing bloggers would not qualify, either.  If not a suspect class, a legislative body only needs a "rational basis" to treat different groups of people differently. [from reader M. G.]

Supreme Court doctrine has been evolving, but when I went to school there were two things that could trigger "strict scrutiny" (and, usually, invalidation) under the Equal Protection clause. One was if a law discriminates against a "suspect class." But the other was if it i nfringes on a "fundamental right."  What's a "fundamental right" if not speech? Is the "fundamental right" trigger no longer operable? ... P.S.: Whether the Court recognizes it or not, the so-called "rational basis" test is a crock. See Robert F. Nagel's famous law review note, "Legislative Purpose, Rationality, and Equal Protection," 82 Yale Law Journal 123 (1972). Every law is perfectly rationally related to the goal of doing exactly what it does. The question is whether some goals are impermissible, a question that can't be answered on the basis of "rationality." That much I remember! ... 3:13 P.M.

The stage is set  for the double-cross of the decade:

I like Harriet Miers," Reid said the day the nomination was announced. He called her a "trailblazer for women" and said her experience as a practicing lawyer would "benefit" the court.

Reid did not endorse her, though, and aides are careful to say he has not made up his mind.

"Sen. Reid did suggest that President Bush take a look at Miers," said Reid spokesman Jim Manley. "But he'll be reserving judgment until the committee process plays itself out."

Equal Votes, Equal Speech: If Congress does grant special First Amendment rights  (i.e. protection from testifying) to professional journalists but not to amateur citizen-journalists, can the amateurs sue under the Equal Protection Clause? That seems to me the interesting question. If Congress said professional reporters had more votes than ordinary citizens, after all, it would be struck down instantly. What's different about speech? ... I know, I know. The press professionals are doing it for our benefit! But you could say the same about, say, giving more votes to the more educated. They'd be doing it for the rest of us. Did someone add a Condescension Clause to the Constitution when I wasn't looking? ... P.S.: Anyway, we're blogging for their benefit. Who do you think reads blogs? Reporters! That means we should be double super privileged! ... Who informs the informers, I ask you? ... P.P.S.: The trouble, of course, is that if you protect everybody then you have to offer less protection than if you only protect a select few. So a privilege that included bloggers and potential bloggers would either not protect much or would eat away a lot of the general obligation to testify (which might not be such a terrible thing). ... P.P.P.S.: I wrote my law school thesis on this subject. I wish I could find it. 7:39 P.M. link

Contagious neurosis? Seemed plausible enough. But that didn't explain  ...: The mystery stench has hit Cardiff Bay, Wales. ... Hmmm. Where we'd least suspect it! ... The stench (in L.A.,   D.C.,  and Wales) always seems to come from the sewers. The composition of human sewage can't have changed that much over the past year, can it? ... 6:06 P.M. link

Gulf Coast Wage Rise: As predicted yesterday by "emailer B," construction wages are not in fact falling in the Gulf states after Bush's suspension of the Davis-Bacon Act's cumbersome "prevailing wage" requirement. They are rising, because the demand for workers is enormous. The QandO Blog has details. Here's an account from Louisiana:

Despite reports that Louisiana workers are having to compete against out-of-state workers for lower wages, a contractors association said Tuesday that wages are in fact rising around the state because of the demand for workers in the New Orleans area. ...

Ken Naquin of the Association of General Contractors said Tuesday that workers in other parts of the state are walking off job sites because they're being offered more money in southeast Louisiana.

"They're paying a premium above the Davis-Bacon Act and guaranteeing overtime," Naquin said at a Tuesday panel organized by Kean Miller & Associates. "There are jobs for anybody that wants to work."

Before Katrina the tight job market and Mississippi's traditional low pay kept the offers hugging the minimum wage of $5.50 an hour, maybe $6.50 on a good day. Today, with Katrina's mess visible on every block, wages for an unskilled laborer begin at $8 and often run to $11 an hour." 

It now seems pretty clear that what Talking Points Memo'sJosh Marshall ostentatiously called Bush's "Gulf Coast Wage Cut" wasn't. It was mainly a paperwork cut. Dems were fools to try to make a big deal of it. ... P.S.: There are surely instances--not this one--when Davis-Bacon does raise construction wages above what supply and demand would dictate. I oppose it then too. It hamstrings affirmative government, and the arguments for setting an above-market wage for construction workers could be made for virtually any other occupation. (I'd like the government to step in and prevent all these low-cost bloggers from eating my lunch. Blogspot should pay the prevailing wage, as determined by DOL, don't you think?) Either we have a market for labor--with a minimum wage floor--or we don't.  It's silly to say "we're for the market except when a powerful Democratic interest can get the government to intervene on its behalf."  That's K-Street thinking, TPM style!  See for example this festival of tendentious rationalization. ...

Update: The robots at Google Ads seem to be serving up links for some highly trained Davis-Bacon parasites to accompany this item. Please patronize them! It would be a shame if their talents at working with unneeded, counterproductive regulations went to waste. ... 3:25 P.M. link

More Hot Davis-Bacon Dish! Yesterday, we  heard from a federal contracts officer who said Bush suspended the Davis-Bacon Act's "prevailing wage" rules post-Katrina not to bait liberals but because "they are stupid regulations and waste time." Today, we hear from the other side of the table--the contractors' side. Here is emailer "B," a "contracts manager," who says "I work for a corporation and negotiate contracts from federal agencies, and have done construction contracts with Davis-Bacon": 

A contract out for bid does that not have Davis-Bacon will have more bidders, especially from small and minority firms that don't have the administrative staff accustomed to handling the onerous paperwork that Davis-Bacon brings with it. You'll find small outfits that do a great job and can get bonding – payment and performance bond are required on construction contracts – but get overwhelmed with the paper. 

For large projects, the prime contractors will have more subcontractors to choose from for the same reason. ... Whatever the size of the project or the size of the company, wages won't necessarily be lower.  Whether you're big or small you've got to pay a fair wage for the worker's skills, and you've probably already got a core workforce that you have to keep happy.  What Davis-Bacon brings is the need to certify the skills of each employee in the labor category he's working.  You can do the work, meet the contract's milestones, and be on schedule, yet have portions of your scheduled payment withheld because of missing certifications or other paperwork foul-ups.  Besides, there will be lots of work, good workers will be in demand, and their wages will reflect that.

If you're using union labor, you've got a mixed blessing – the union will provide the certifications that will stand the government's scrutiny, but you might get a fair number of idiots who can't do the job at a reasonable pace.  You will also get job actions if you try to get one kind of union guy to help out another kind of union guy, like having a laborer carry paint for the painters.  They call the stewards and everybody fights for an hour.  And don't ever mess with the plumbers or the electricians. 

Folks forget that any and all projects will have government auditors going over every piece of paper they can lay their hands on, and the audit will continue long after the work is done and paid for.  Any missing paperwork will cost you money; it that sense, avoiding Davis-Bacon lowers your risk of having money taken back.

Finally, without Davis-Bacon and without unions, you'll be able to hire a lot of low skill, low productivity folks for general clean up, assistance to your high-productivity workers, etc.  You'll be able to do tryouts of a sort to see how a guy works out.  With Davis-Bacon you'd have to classify these kinds of folks right off the bat and pay a higher rate; you'd hire very few and would be unable to reward any stellar performers with a higher wage because they wouldn't have all the elements that would qualify them for a higher classification ... .   

Emailer C., a "lawyer who represents construction companies" half-dissents:

The Act does create red tape.  But the examples you cite really aren't problematic.  The "prevailing wage" calculation, for example, is something that has already been determined and is published.  It is always being tweaked, but the wage for a certain area is what it is, and all interested contractors need to do to "determine" that wage is ask the government contracting officer in charge of the project.  As for the red tape associated with ensuring that contractors are paying the wage, this requires the contractor to provide "certified" payroll records showing that the laborers are actually receiving the prevailing wage.  I've had some very small, very unsophisticated clients master this paperwork. Halliburton and the big heavies reported to be receiving the lion's share of the reconstruction work can do this paperwork in their sleep. 

Even if "C" is right (and "B" would presumably dispute him), whatever red tape there is can't help speed and efficiency on the contractors' side.. Nor does there seem to be a good reason to favor the Halliburtons over smaller firms. There is plenty of work to be done on the Gulf, and that alone will presumably drive up wages, as "B" notes--unless the "low skill, low productivity folks" who get hired outside of Davis-Bacon "for general clean up" are illegals attracted to this country by the availability of Katrina jobs. The answer to that problem would seem to be to enforce the immigration laws. ...

P.S.: Jason DeParle's recent NYT piece on post-Katrina poverty policy quoted economist Jared Bernstein arguing that suspending Davis-Bacon hurts the "poor and disadvantaged." But the lower-skill workers who (according to "B") would get jobs absent Davis-Bacon's restrictions are much more likely to be "poor and disadvantaged" than the plugged-in AFL-CIO members. Since when is it the goal of liberalism to preserve the wage inequalities that the even the market doesn't support? Plus Davis-Bacon, as "B" notes, operates to exclude minority contractors. ... Better to just create lots of jobs, as fast as possible, and force employers to compete for everyone, raising wage levels generally (as happened at the end of the '90s). To this end, John Edwards has called for a "job creation" program built on the "principles that FDR and the WPA taught us." Sounds good. But FDR, remember, had to break an AFL strike over the "prevailing wage" issue to make the WPA work. ... 7:14 P.M. link

Face-saving time? How about appointing Miers to a federal appeals court? She's qualified. Bush could say that while he knows Miers he understands others' doubts--and he knows she will prove over a couple of years what a first-rate judge she is. Then he hopes to be able to promote her.  Semi-humilating, but less humiliating than the alternatives.  And not a bad job to get. ... Miers could puncture the tension with one smiling crack about being sent to the minors. The collective sigh of national relief would drown out the rest of her comments. ...11:01 P.M. link

The Singularity Approaches: Amazing Daily Kos  graphic  documenting the declining influence of three New York Times columnists since the introduction of TimesSelect on September 19. ... The same nosediving trend applies to Maureen Dowd. ... And then there is the looming Krugman-Kaus Convergence! ... [Thanks to MP ]

Update: Luskin and some emailers suggest the trend evaporates if you look at a 6-month period. I don't think so. If you exclude Maureen Dowd (who was on book leave for several weeks) and look at Friedman, Krugman,and Brooks added together, they hit a low in early October. That's not even discounting for the presumably large number of recent references that are not posts of people who've read their columns but are posts of people who haven't and are complaining, "Hey, I can't get to Friedman, Krugman and Brooks."... 5:30 P.M. link

Davis-Bacon Confidential! My colleague Bruce Reed says that President Bush waived the Davis-Bacon "prevailing wage" rules for post-Katrina federal construction projects

"because a group of conservative members of Congress saw a convenient opening to drive liberal members crazy."

To make the case for "prevailing wage" rules, Reed refers to Matthew Yglesias, who admits he doesn't "really know anything about"  the subject before mounting a general coalition-building defense of union-pleasing waste. (Plus Yglesias says he was just a widdle-biddy boy during the battle of neoliberals against Dem special interests in the 1980s, so .... well, it's not clear what follows from this.) Meanwhile, Kevin Drum  admits  "the first time I had ever heard of the Davis-Bacon Act was on September 9," but goes on to support the Act  because "it's focused like a laser on just one thing: paying decent wages" rather than creating "archaic red tape" or "byzantine" work rules.

Let's hear from someone who does know something about Davis-Bacon! Kausfiles has received an e-mail from a seemingly well-informed source deep within the federal bureaucracy:.

I am a Federal Government Contract Specialist (job title: means I award contracts on behalf of the government) and know a lot about this law and have dealt a lot with this law. ... [I]f you want to see why Bush suspended the Davis Bacon act, read what it entails:

That's the regulations. The reason isn't to save the government money. The reason may be politically motivated, but the reason is more this: they are stupid regulations and waste time. Davis Bacon requires anyone who wants to do a construction contract (read those Regs, and if you have real insomnia take a look at the part ...that has to do with construction  ...) has to go through an inordinately larger number of steps than you have to even for regular contracts (which is still daunting).

Construction in the eyes of the Federal Regulations means a lot. Any change or improvement on a surface (painting, for instance) is construction. Davis-Bacon
applies to all of it. It requires people to get wage determinations, which are published by the Department of Labor and are notoriously inaccurate to actual market conditions, then engage in a long series of exercises with the contractor to insure they are actually paying people said wages and examine their records.

This wastes a lot of a more precious resource than government money: government time. Enforcing and implementing Davis-Bacon adds days, weeks, months to processes. Bush cut it because it makes sense. We'd still be in the preliminary stages of setting up contracts for reconstruction if Davis Bacon was in place, but now we can just go ahead and use the normal acquisition regs for those contracts.

In other words, to get the contractors to work fast, you need to suspend Davis-Bacon. That's why he did it. Granted weaknening wage laws sucks and it's probably an intended political side benefit, but it's FAR from the true issues at stake. [Emphasis added]

Working fast doesn't only have the obvious benefit--in the case of Katrina, it also allows the government to harness the power of its notorious September Spending Spree:

The issue here is that the federal government has a lot of leftover money (as it does at the end of every Fiscal Year, since the money turns into pumpkins midnight on September 30). In order to use it up, all contracts have to be awarded by Sep. 30. It's hard enough getting a regular large service contract done and awarded in a month, one that involved Davis Bacon would be impossible. Therefore a lot of money that the agencies want to use and repurpose for Katrina relief and field activities effectively COULDN'T BE if Davis Bacon was in place. It would essentially go to rot, or have to be used on other less important projects, what we usually do with end of FY money. In a sense, Bush is allowing for all that leftover money to now be dumped into reconstruction when it otherwise couldn't be. [Emphasis added]

In sum: 1. Contra Reed, Bush had a perfectly good, non-political reason for suspending Davis-Bacon. 2. Contra Drum, Davis-Bacon doesn't just boost wages. It creates lots of "archaic red tape" and wastes much more money than just the increase in workers' pay. . ...

Preserving Davis-Bacon may endear Democrats to the AFL-CIO's construction unions, but it's a slightly trickier case to make to voters--"Hey, this will really slow rebuilding and make it way more expensive for taxpayers!" Why take a stand defending the indefensible? 2:35 P.M. link

Embargoed, embattled, and embittered? It is odd that Maureen Dowd hasn't written a word about Judith Miller's jailing and release, isn't it? As the omnipresent J. Hamsher noted, the Miller story presents a protoypical Dowd subject, rich with mockable human pride and folly. ... Is the refusal to analyze the Miller circus another form of Dowd's apparent post-TimesSelect work slowdown? Or is Dowd in a double prison: 1)  Cut off from her vast audience by the TimesSelect subscriber wall; 2) Even within her remaining, limited media space, precluded from writing about one of the two or three juiciest topics of the day for fear of deviating from the company line? ... P.S.: As Hamsher also points out, the entire premium-priced Times op-ed corps has been oddly silent on Miller. The last reference I can find was a one-sentence aside on July 26, months before Miller's release, in a Nicholas Kristof in a column on Darfur. (He was "outraged" at the jailing.) ... P.P.S.: Is this eerie collective silence the product of direct censorship or self-censorship? And if it's self-censorship, as is likely, isn't that worse? If you avoid saying things you think might annoy the boss, you may avoid saying more things than if the boss makes it clear, through direct communication, what actually annoys him and what doesn't. That's one reason there was more self-censorship when I worked at Newsweek under the benign, tolerant and non-interfering Katharine Graham than at the New Republic under the contentious and opinionated Martin Peretz. You never worried that Marty might be privately upset with you. ...

**--It's not as if Dowd has a book coming out and needs all the exposure she can get. ... Oh wait.

Backfill--Get it first but first get it fourth! PressThink's Jay Rosen noted Dowd's silence a day after Hamsher. ... On Sunday, Greg Mitchell mocked the NYT's "seven hard-hitting" AWOL columnists. ... 1:34 A.M. link

Dear Tribune Company: Can we have the massive layoffs now? Please? Can it be that an improvised explosive device was found and detonated  by police on Friday near the University of California at Los Angeles and the story still has not made the Los Angeles Times? It looks that way. ... Note to LAT editor Dean Baquet: Whatever you do, don't run this bomb story. People might be interested! That's always dangerous. But if readers never find out about it then they won't be unnecessarily worried. The responsible course!  ... 11:00 P.M. link

Before we cheer Fitzgerald ... : Blogger Mark Kleiman has been getting well-deserved credit for being one of the first to argue that Plame prosecutions might be brought under the old Espionage Act rather than the fancy "new" 1982 Intelligence Identities Protection Act (IIPA). But Kleiman also notes that the Espionage Act is "close to an Official Secrets Act," and  "would be extremely easy to abuse  to suppress discussion of live public issues. Arguably, this is one of those cases. Lots of people in DC knew Valerie Plame worked at the CIA, after all. And it was a relevant detail if you were trying to come to a position on whether Iraq had tried to buy uranium in Africa, which was in turn relevant to the non-trivial public policy question of whether the country should go to war. Criminalizing public discussion of the CIA connection--unless the harm to U.S. security from Plame's outing was immense, and the government was trying harder to keep her secret than it apparently was--is troublesome, no? ... Before you say "Nah, lock Rove up," imagine it was an anti-war State Department dissident who faced charges for pointing out that a Republican ex-ambassador who claimed to have evidence justifying a war was married to a not-so-covert CIA officer. ... There is a reason why prosecutions under the Intelligence Identities Protection Act are hard. They should be. ... P.S.: Doesn't the heavily-qualified IIPA preempt the open-ended Espionage Act when it comes to the crime of revealing agents' identities? At the very least you'd think it would preclude fanciful, broad interpretations of the earlier law. The IIPA certainly reflects the legislature's most recent thinking on the issue. ... Backfill: It seems  Jack Shafer beat me to most of these points. At least I'm less comprehensive. Shafer writes:

If the government used espionage law to investigate government leaks to the press, the effect would be an unofficial secrets act criminalizing thousands, if not tens of thousands, of annual conversations between sources and reporters.

More: Kleiman  agrees and disagrees. 4:07 P.M. link

NYT editor Bill Keller fires defensively at all targets (bloggers, Fox, Yahoo!, the WSJ) and finally offers some numbers on TimesSelect that, on second glance, turn out to maybe be not-so-impressive:

Keller hailed early returns on TimesSelect, which grants online access to the paper's columnists only to Times subscribers and those who pay $49.95 a year, saying a "couple hundred thousand people" have signed on for the service. However, a Times spokeswoman later clarified this figure, explaining that it includes current Times subscribers, who get TimesSelect for free, saying that the paper was not disclosing how many people were paying for TimesSelect. [Emphasis added]

Plame Update--Thank you, new Hamsher:  The most intriguing theory I've heard to explain the latest developments in the Plame story--i.e. Judith Miller's producing** notes of an early conversation with "Scooter" Libby, Karl Rove's fourth grand jury appearance--has been developed by Jane Hamsher of firedoglake and emptywheel of The Next Hurrah. It is, however, difficult to extract this theory from their paragraphs of knowingly informal, bloggish copy. Fortunately, Mark Kleiman condenses and summarizes the Hamsher/Hurrah "Mousetrap" Scenario--which features special prosecutor Fitzgerald letting Miller open herself up to a perjury threat.  ... Greg Mitchell, who may read a few blogs himself, outlines similar possibilities in Editor & Publisher. ... 

P.S.: I'm not familiar enough with the details to responsibly offer a comment. So here's a comment: A key question raised by the "Mousetrap" speculation is whether N.Y. Times reporter Judith Miller accurately testified about a June, 2003 meeting with Libby that predated the July op-ed by former ambassador Joseph Wilson that was previously thought to have kicked off the whole Bushie attempt to discredit Wilson by--possibly illegally--revealing the CIA role of his wife, Valerie Plame. In this context, Miller's production of the new notes might not be as ominous as it seems. She might want to show the prosecutor the notes in order to prove that she and Libby discussed Wilson but not Wilson's wife. In other words, the notes might exculpate Libby from a charge of maliciously leaking the Wilson-wife-CIA connection. They might also, in some possible, equally speculative scenarios, exculpate Miller from a charge that she hasn't been fully forthcoming with the prosecutor (e.g., if he had asked her only about conversations related to Mrs. Wilson (Plame), rather than Mr. Wilson, and she can prove that this was not a conversation about the former.)  ... TalkLeft is also skeptical. ...

**--I'd previously referred to Miller's "discovery" of the notes, following the NYT which called them "newly discovered" on Oct. 8. But as TalkLeft points out, it's not clear that the notes have been "discovered" in any relevant sense. They just might not have been included in Fitzgerald's original subpoena to Miller. ... It's easy to mock Miller  for "newly discovered" evidence, but kausfiles is determined to be fair, even if Miller's enemies at the New York Times are not! .... 9:03 P.M. link

Headline Still Available: "Miers Remorse." Use it or lose it. ... 10/9 update: Sold! To the Wall Street Journal and John Fund.  ... P.S.: Alert reader B.S. reports that "Sunshine Jim," a commenter on the Majority Report Radio Web site,  used the phrase back on 10/4, though not in a headline. [He was still first, right?--ed He beat me. I don't know if anyone else beat him.]  ... 2:33 P.M.

Too interesting! One major metropolitan newspaper story on the administration's alleged success in foiling Al Qaeda tells us, in its second paragraph, that

The reported plots aimed to strike a wide variety of targets, including the Library Tower in Los Angeles, ships in international waters and a tourist site overseas, the White House said last night. [Emph. added]

Another major metropolitan newspaper doesn't mention the possible targeting of L.A.'s tallest building. The paper that doesn't bother to mention the gripping Los Angeles angle would be the major newspaper of:

a) Los Angeles

b) Washington, D.C.

Time's up! Brendan Loy has the answer. .... P.S.: New L.A. Times editor Dean Baquet is quoted in Ken Auletta's New Yorker piece saying "we haven't mastered making the paper feel like it is edited in Los Angeles." Uh ... yeah! But how hard is that? Here's another pop quiz:

The L.A. Times doesn't report an allegedly foiled Al Qaeda plot against a Los Angeles landmark because of:

a) mid-level editors imbued with a numbing, pompous, fake-newspaper sensibility that instinctively sneers at any story that might rouse local animal spirits; or

b) budget cuts

Bonus question: Which of those two choices--(a) or (b)--do Times editors spend most of Auletta's piece whining about? ... 3:24 A.M. link

CBS has a new poll that finally lets Miers' ratings be measured against those of other Supreme Court candidates. The numbers aren't precisely comparable, Mystery Pollster notes--but they show that Miers is no Roberts. Not even a Thomas. Instead her numbers are the same as Bork's. Yikes. .... 1:59 A.M. link

Bill Kristol thinks Miers should maybe withdraw. But fellow Miers opponent  Mark Levin says it's all Bill Kristol's fault! ... 4:37 P.M.

Are the aspens turning?** Lawrence O'Donnell is back, parsing a refusal-to-deny  from Karl Rove's weaselly lawyer that the lawyer contradicts here.  ("I can say categorically that Karl has not received a target letter from the special counsel.")  But something seems to be up, and O'Donnell provides one useful template, in addition to doubling down with a prediction of "three high-level Bush Administration" indictments. ... He's been non-wrong before. ... [**-stolen from JustOneMinute commenter "freaknik"1:35 P.M. link

Control of the Internet would be one area where my impulses are entirely nationalistic and imperialist. (Why? We're freer than they are. At least until Hillary Clinton and Floyd Abrams ** take over!) That's why I didn't understand this passage, in the Guardian, about the international community's effort to award itself control over global speech:

It will be officially raised at a UN summit of world leaders next month and, faced with international consensus, there is little the US government can do but acquiesce. [Emph. added]

Why does the U.S. have little choice but to acquiesce? They're our servers, aren't they?  We can thumb our nose at the U.N. on Iraq but not on free speech? [via Drudge ]

**--A bit of a cheap shot. Abrams once told me, disarmingly, that he'd been wrong to say, in the WSJ, that

If one were rewriting libel law today, one would try to write it to assure that the false statements of Matt Drudge were treated as libel.

But do you trust him? Abrams seems most comfortable granting speech privileges to professional journalists--the corporate model, in which reporters are the eyes and ears for the rest of us. (Hence his flat-footed promotion of a special privilege for Judith Miller.) That's not the model of the Internet.  12:52 P.M. link

First Shoot the Fish in the Barrel: Achenbach mocks TimesSelect.

Another huge drawback to Times Select is that the columnists are under extreme pressure to produce writing that can justify a surcharge. You can sense they're straining. No doubt they will pound out a perfectly fine column and then think: Is it good enough for Times Select?

Achenbach's got more where that came from. You want two yards of harmless irony or three yards? He can fill your order. ... 12:04 P.M.

Here's a graf from the New Yorker'sKen Auletta on the tussle between John Carroll, now-resigned LAT editor, and his overseers at the Chicago-based Tribune Company:

The Tribune Company commissioned a study of staffing patterns at various papers and, according to senior editors, discovered that the Times had many more copy editors than the [Chicago] Tribune. Carroll told Smith that copy editors were an important part of making a good paper great, but Smith replied that the Tribune was sufficiently great with a much smaller staff. Carroll did not tell him what he believed--that the Tribune was inferior to the Times. [Emph. added]

Various Times-people assure me the Tribune execs are bad news, but you have to sympathize with them in this passage. They've bought a paper with a history of bloat, gold-plating, and soul-deadening complacency--the "velvet coffin," as it was known. According to Auletta, it has a thousand editorial employees! With a third of that, you could easily put out a paper that wouldn't be as good--it would be much, much better. Yet Carroll defends every last copy editor. ... P.S.: I admit, I have a natural enmity with copy editors. My position: A good copy editor will make your copy better--but only on rare occasions will it be enough better to justify the delay and hassle, let alone the copy editor's salary. And good copy editors are hard to find--the best quickly move on to other jobs these days. Those that stay, especially in big organizations like the LAT, are too often repositories of self-justifying pedantry! Usually they just make copy duller. ... Does Carroll really think the Times would be discernibly worse if Ron Brownstein were allowed to type his articles right from his Blackberry onto the front page? Even if you could take the copy editors' salaries and hire more Brownsteins? ...You could make them all use spellcheck! ... 1:16 A.M. link

The Schumacher Strategy: Conservatives, a D.C. Republican friend tells me, wanted a fight over the O'Connor seat for its own sake--and not just for tacky fundraising and self-promotional reasons. They think they represent the majority position on judging; they needed a confrontation to draw the line and prove it. Plus a confirmation battle would be "consciousness-raising," as we used to say on the left, serving (in theory) to actually increase their ranks.

One reason the Miers nomination is in trouble on the right, then, is that it denies conservatives this instructive battle. It follows that a perverse-yet-promising strategy for Bush might be to give the 'wingers what they want. Have Miers make some unnecessarily provocative right-wing noises during her testimony that gratuitously outrage liberals. A noisy confrontation would ensue. Then the liberals would be happy (they'd have something to say) and conservatives would be happy (they'd achieve their educational purposes).

Arguably Miers gets more votes this way than by pursuing a "stealth" course.  Certainly she gets more enthusiastic support from Republicans, and Bush may get more political benefit. ... Plus the ideological donnybrook would overshadow the cronyism issue, where Miers is most vulnerable. ... Automotive Analogy! In Formula One racing, I'm told, when the top drivers sense their cars slipping in a turn, they step on the gas to go faster. Why? Because the extra speed means that the airfoils on their cars generate more downforce, giving the tires more traction and helping them around the curve. That's why they make the big bucks! Call this the Schumacher Strategy, then. ...

Update: A strategy that stresses Miers "record of accomplishment,"  on the other hand, is going in more or less the opposite direction--trying to steer her through without a fight ...

More: Here's GOP Sen. John Thune making it explicit--

Emerging from the Republican senators' weekly policy meeting Wednesday afternoon, Sen. John Thune, R-S.D. told reporters that grassroots conservatives were asking why Bush would "show the white flag when having a fight would really energize and motivate our supporters? And especially if you look at the politics of 2006, I think our folks were really ready for a fight. I think a Left v. Right fight is something that helps us.

See also Sen. Brownback's comments earlier in the same article. ("What was lost was the chance to educate the country ....") 

Dissent: Reader A.R. says I have it wrong--

Conservatives were hoping that Bush would nominate one of the many great intellectual judicial conservatives who would then do battle with the likes of Schumer, Feinstein, Kennedy, etc. during the confimation hearings. It's the belief of conservatives that such a nominee would blow these insipid clowns out of the water thus publicly revealing the shallowness of their positions. Conservatives desperately want a very public debate on judicial philosophy. Unfortunately, we don't see Harriet Miers as the person for this job. Forcing her into that role via a provocative statement would probably be an unmitigated disaster for our side. [Emph. added]

I don't know--you don't have to be an intellectual titan to make a case against liberal judicial imperialism that holds up under Chuck Schumer's questioning. Surely Miers can do that--when, unlike the already-published Bork, she can always duck back behind the need to avoid prejudging, etc. 3:25 P.M. link

I subscribed to TimesSelect and all I got was this old MoDo video clip! Dowd on strike. ...  P.S.: Here's an eye-opening graph comparing the recent performance of WaPo and the NYT. Will they feed Pinch to the mooses? [If enough people think that, the stock will start to rise-ed. The man's a genius!] ... 1:41 P.M.

First poll:  49% of self-described conservatives rated Roberts "excellent." Only 20% rate Miers "excellent." This apparently accounts for most of the difference between the initial popularity of Roberts and Miers. MP has the key Gallup cross-tab. But maybe Roberts did extraordinarily well. Is Miers doing well enough? We need historical yardsticks. ... How did Carswell rate? 1:14 P.M. link

But maybe they'll get a cut of Judy's book deal: If TimesSelect's annoying pay-for-punditry approach is a huge success, the stock market doesn't seem to have heard about it. N.Y. Times shares are trading at what appears to be a six-year low. ... 3:45 P.M.

The fatal, non-snobby objection to Miers: Randy Barnett points out that the "cronyism" worry isn't just a worry about an unqualified nominee, or a theoretical worry about the "separation of powers." There's a concrete concern about her ability to rule against the interests of the man and family to whom she's been so loyal (and to whom she will owe her spectacular elevation)**:

Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent--especially during the remaining term of her former boss.

Also, he might have added, in the possible future terms of other Bush dynasty members (i.e. Jeb). The Bushes do their business by calling on personal loyalties. It's a legitimate question to ask whether they are (if only subconsciously!) trying to extend this modus operandi into the judicial branch. It all seems a bit Latin American, no? Harriet Miers could be the most qualified judge in the nation--and a breath of fresh air to boot--and cronyism would still be a potentially disqualifying factor. There are some moves Presidents who gain office on 5-4 Supreme Court votes can't make. ...

Update: President Bush, and some media reports, may have gone a long way toward dispelling worries about Souterism on the right. But not worries about cronyism! And they span the spectrum. ... Indeed, Bush's defense against the Souterism charge--"I know her well enough to be able to say that she's not going to change"--only reinforces the cronyism charge. He's putting his personal legal consigliere on the Supreme Court. If she's going to show any independence, she's going to have to change, no? ... P.S.: As Maguire notes, Miers might still prove highly popular in opinion polls. She's an appealing figure. I'm talking about what should disqualify her--not necessarily what will. ...

**: And whom she apparently admires disproportionately. Here's David Frum:

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met.

It's a bigger conflict of interest than Howie Kurtz and CNN! ... 12:41 P.M. link

Libby Lives Dangerously: The N.Y. Sun's Josh Gerstein reveals  that special prosecutor Patrick Fitzgerald explicitly warned "Scooter" Libby's lawyer against

"discussing the substance of what [Judith Miller's] testimony might be"

days before Libby sent Miller a letter with some not-so-subtle hints about ... well, the substance of what Miller's testimony might be. Close to the line! Unless Libby was actually worried about her testimony, why would he take the risk of angering Fitzgerald? ... P.S.: I previously speculated that Libby must not have been worried about Miller, because his attorney picked a fight with her camp in the press. Now it turns out (assuming he saw his client's letter) he also had risked riling Fitzgerald. Two possibilities: 1) Libbby's lawyer picked the fight with Miller to placate Fitzgerald after his client had potentially annoyed Fitzgerald by coaching Miller; 2) It's a classic conspiracist mistake to assume that everyone is acting rationally in their or their client's self-interest, and also a mistake to assume lawyers are communicating clearly with their clients. Maybe Libby thought he was being clever. And Libby's lawyer might have argued with the Miller camp just because he got his back up. ... 11:19 A.M. link

Follow-up on the spin: Back in May, when the Senate's "Gang of 14" announced their compromise on filibustering judicial nominations, some Republicans declared victory. Commentator David Brooks agreed that it was "a good win for those conservatives"  because 

It creates what I think of as the Brown standard. The Democrats said they would only filibuster under extraordinary circumstances. They said the nomination of Janice Rogers Brown is not an extraordinary circumstance.

Kf, on the other hand, said the Gang of 14 deal was "favorable to the Dems" because

If the "nuclear option" is on the line when President Bush nominates a Supreme Court justice, that in itself will circumscribe his choice. He won't want to name someone too controversial, lest the public side with the pro-filibuster Dems.

Now Bush has named Harriet Miers--a nominee pre-approved by the Senate's Democratic leader and seemingly controversial only on the right.


Brooks: Bought bogus GOP spin!

kf: Eerily prescient!

At least they're not trying to charge money for Brooks. ... Oh, wait. ... 3:10 A.M. link

Why does President Bush's nomination of White House Counsel Harriet Miers to the Supreme Court remind me of Patty Hearst marrying her bodyguard? ...  I can see how Miers might turn out to be a brilliant pick. But her proximity and loyalty to Bush are burdens, not virtues. They raise extra doubts that need to be overcome--i.e., doubts that wouldn't be raised in an equally under-resumed and unknown candidate who wasn't Bush's in-house lawyer: 1) This is the Supreme Court, which is supposed to be an independent branch. That means loyalty should count for less and prickly integrity for more. The disgraceful Abe Fortas is of course Exhibit A of what you don't want; 2) Even in the executive branch, where cronyism has a long, honorable and effective tradition, it hasn't been working conspicuously well of late for President Bush; 3) This sends a message to all sorts of ambitious, competent GOPers that the only real way to get the big promotions in a Bush administration is to actually work with Bush personally.** That's a good way to encourage talent to stay in the private sector; 4) Does Bush understand that there's a great big world out there beyond his own bubble? Maybe he scoured the countryside and decided he just liked Miers better than anyone else. But he needs to reassure Americans that this was was the case, explaining in some detail why he liked Miers better--a reassurance that wouldn't be necessary if the nominee weren't someone who worked down the hall. Unfortunately, honest detailed defenses of this sort are neither a Bush strong point nor a presidential tradition when it comes to judicial nominations. ...

**--Yes, there's an old and good joke about an accomplished lawyer and macher who was spotted walking Bobby Kennedy's dog. (Punch line: "That may look like a dog to you, but to me it's an ambassadorship.") But the joke doesn't reflect all that well on the Kennedys, even though they tell it on themselves. And it wouldn't reflect well at all if the dog was a Supreme Court seat. 4:10 P.M. link

Crossing Miller: Jane Hamsher of FireDogLake wonders who leaked the Libby/Miller correspondence to the New York Times (and maybe to Powerline too). 1) Judith Miller presumably wasn't behind the leak, since the documents tend to make her look bad for suddenly discovering the sincerity of Cheney aide "Scooter" Libby's waiver. (And if the NYT got them from their mutual attorneys against Miller's wishes, that might be unethical, as Hamsher notes.) 2)  OK, so they got them from Libby, right? But why would Libby want to gratuitously anger Miller on the very day she was giving testimony that might or might not cause his criminal indictment?* You'd think that would be the moment he'd want to suck up to her.** That leaves 3) one party who may have had access to the letters--at least one of which was addressed to him--and who seems to despise Miller. He also had an interest in riling her up against Libby right before she testified: Special prosecutor Patrick Fitzgerald. ... Just thinking out loud here! ...

*: The NYT apparently had the letters when it published the story it ran on Friday, September 30, just before Miller's testimony. The release of the letters themselves  is dated the next day.

**: Still inexplicable--even if Libby's camp didn't leak the letter--would be his lawyer, Joseph Tate's  contradiction of Miller's story in WaPo the day of her testimony. Wasn't that kind of against the interests of his client,at least if Miller knows anything that might potentially incriminate Libby? Or was it was more important for Libby to please prosecutor Fitzgerald--by a) making Miller look bad and b) arguing that Libby had expeditiously provided waivers to Miller? Tate's public debate with Miller's lawyers is certainly the clearest evidence I can see at the moment that Libby really isn't worried about Miller's testimony. ... [If pleasing Fitzgerald was Tate's motivation, why couldn't he also have leaked the letters to please Fitzgerald?--ed. It's possible. But the letter leak seems piling on in a way designed to maximize the annoy-Judy factor. ... Tate might also have blurted out his "surprise" to WaPo simply because it was, you know, the truth. Leaking a letter, however, is a calculated act.] 1:29 A.M. link  


Drudge Report--80 % true. Close enough! Instapundit--All-powerful hit king. Joshua Marshall--He reports! And decides!  Wonkette--Makes Jack Shafer feel guilty.  Salon--Survives! kf gloating on hold. Andrew Sullivan--He asks, he tells. He sells! David Corn--Trustworthy reporting from the left.  Washington Monthly--Includes Charlie Peters' proto-blog. the drink. Virginia Postrel--Friend of the future! Peggy Noonan--Gold in every column. Matt Miller--Savvy rad-centrism. WaPo--Waking from post-Bradlee snooze. Keller's Calmer Times--Registration required.  NY Observer--Read it before the good writers are all hired away. New Republic--Left on welfare, right on warfare!  Jim Pinkerton--Quality ideas come from quantity ideas. Tom Tomorrow--Everyone's favorite leftish cartoonists' blog.  Ann "Too Far" Coulter--Sometimes it's just far enough. Bull Moose--National Greatness Central. John Ellis--Forget that Florida business! The cuz knows politics, and he has, ah, sources. "The Note"--How the pros start their day. Romenesko--O.K. they actually start it here. Center on Budget and Policy Priorities--Money Liberal Central. Steve Chapman--Ornery-but-lovable libertarian. Rich Galen--Sophisticated GOP insider. Man Without Qualities--Seems to know a lot about white collar crime. Hmmm. horror stories. Eugene Volokh--Smart, packin' prof, and not Instapundit! Eve Tushnet--Queer, Catholic, conservative and not Andrew Sullivan! WSJ's Best of the Web--James Taranto's excellent obsessions. Walter Shapiro--Politics and (don't laugh) neoliberal humor! Eric Alterman--Born to blog. Joe Conason--Bush-bashing, free most days. Lloyd Grove--Don't let him write about you. Arianna's Huffosphere--Now a whole fleet of hybrid vehicles. populists. Take on the News--TomPaine's blog.  B-Log--Blog of spirituality!  Hit & Run--Reason gone wild! Daniel Weintraub--Beeblogger and Davis Recall Central. Eduwonk--You'll never have to read another mind-numbing education story again. Nonzero--Bob Wright explains it all. John Leo--If you've got political correctness, he's got a column ... [More tk]