Inconvenient News,
       by smintheus

Wednesday, July 29, 2009

  Washington Post goes Minitrue

In Orwell's Nineteen eighty-four, Winston Smith works in the Ministry of Truth ('Minitrue') rewriting past pronouncements to fit the facts to the party's doctrine and to efface any traces of potentially embarrassing statements. If he were in DC today, Smith might be working instead for the Washington Post.

Over at the outstanding health-care reform blog of Physicians for a National Health Program, Dr. Don McCanne has caught the Post rewriting one of its stories seemingly in order to eliminate information embarrassing to Blue Cross Blue Shield Association (BCBSA). The original version of the story pointed out that BCBSA had commissioned a study by the Lewin Group research firm but, since BCBSA was dissatisfied with the results, the study never was released to the public. Later the WaPo revised the story and posted the new version on line – without however noting that it had been altered. The revised story completely eliminated the information about the suppressed BCBSA study.

Health-care analysis by the Lewin Group has been widely cited by Congressional Republican opponents of reform. Lewin claims that it provides independent and objective analyses of policy options.The Post story, by David Hilzenrath, demonstrated that Lewin has a considerable conflict of interest in health-care research. It is owned by Ingenix, a subsidiary of UnitedHealth Group, which is one of the largest insurers in the US. Furthermore, both the parent company and subsidiary were exposed by the New York Attorney General for having generated skewed medical data that was used to pad the insurer's bottom line.

Here is a part of the Post's story that was rewritten. First, the version as posted on line at 6:46 PM on July 22, 2009. The emphasis is mine.

Lewin's clients include the government and private groups with a variety of perspectives, including the Commonwealth Fund and the Heritage Foundation. A February report contained information that could be used to argue for a single-payer system, the approach most threatening to private insurers, [Lewin Vice President John] Sheils noted.

But not all of the firm's reports see the light of day. For example, a study for the Blue Cross Blue Shield Association was never released, Sheils said.

"Let's just say, sometimes studies come out that don't show exactly what the client wants to see. And in those instances, they have [the] option to bury the study -- to not release it, rather," Sheils said.

Asked to comment, Blue Cross Blue Shield Association spokesman Brett Lieberman said, "We're still working with Lewin on a study, and, you know, we don't talk about our studies until they're done."

In testimony last month to a House committee, Lewin disclosed its affiliation with UnitedHealth and Ingenix in its written submission, but in his oral testimony he did not bring it up until asked, according to a transcript.

"The Lewin Group is committed to providing independent, objective and nonpartisan analyses of policy options," the firm said at the front of its written submission to the Energy and Commerce Committee. "To assure the independence of its work, The Lewin Group has editorial control over all its work products," the firm added.

Notice that there are 262 comments on that version of the article at the WaPo website. The comments slow to a trickle after about 8 AM on July 23.

Now here is a rewritten version of that story, dated to July 23 but with no time stamp. This version has only 5 comments attached to it (beginning in the wee hours of the morning). Two sections of the story (bolded in the earlier version) have simply been excised. The excisions eliminate embarrassing revelations about (a) the non-publication of the study sponsored by Blue Cross Blue Shield (some of whose affiliates are in strong opposition to the Democrats' health care reform proposals), and (b) the seeming reluctance of Lewin Group to disclose its corporate ownership to Congress (though UnitedHealth has a vast stake in any reform proposals under consideration).

Lewin's clients include the government and groups with a variety of perspectives, including the Commonwealth Fund and the Heritage Foundation. A February report by the firm contained information that could be used to argue for a national system known as single-payer, the approach most threatening to insurers, Sheils noted.

But not all of Lewin's reports see the light of day. "Let's just say, sometimes studies come out that don't show exactly what the client wants to see. And in those instances, they have [the] option to bury the study," Sheils said.

"The Lewin Group is committed to providing independent, objective and nonpartisan analyses of policy options," the firm said in a recent submission to the House Energy and Commerce Committee. Though it is owned by UnitedHealth, the Lewin Group "has editorial control over all its work products," the firm added.

Neither version at the Post mentions that the story has been revised; that an alternate version exists; or that any 'corrections' needed to be made.

Although the PNHP blog doesn't notice this fact, another three paragraphs toward the end of the first version of the story were eliminated in the Post's rewrite. The eliminated paragraphs cited examples where the Lewin Group had positive things to say about the "public plan" under consideration. Here is what was deleted in the rewrite:

Lewin's findings have been somewhat distorted in the political debate. The firm's analysis of the public option is far from one-sided.

As Sheils explained it to the Energy and Commerce Committee, people would opt for the public plan because they would find it more attractive -- mainly because it would charge much lower premiums.

Politicians have argued that the public plan would place bureaucrats between patients and doctors. However, Lewin wrote that, like traditional Medicare, the federal program for the elderly, a public plan would do less than private insurers to restrict medical care.

Why this additional information also needed to be excised is far from clear to me.

Earlier in the article, a single word was changed. Here is the original sentence:

Ingenix supplied its parent company and other insurers with data that allegedly understated the "usual and customary" doctor fees that insurers use to determine how much they will reimburse consumers for out-of-network care.

The later version changes "usual" to "reasonable". No doubt this was just a matter of tidying up facts, but again, the Post can't be bothered to acknowledge the correction.

crossposted from

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Sunday, July 26, 2009

  Why there can be no free market in health care

Paul Krugman argues that those who believe the competition of the marketplace will be able to provide the best possible health care are fantasizing because there is no free market in the normal sense. That basic point should be where any serious discussion of health care reform starts. Yet it has been excluded from the one-sided debate going on in Washington. That's because most of the politicians and their corporate buddies don't intend to allow actual health care reform. Instead they're proposing to tweak the for-profit health insurance industry, though nearly all agree it's a large part of the problem.

Krugman highlights two things that differentiate health care from that archetypal marketplace where buyers and sellers can craft mutually beneficial arrangements.

There are two strongly distinctive aspects of health care. One is that you don’t know when or whether you’ll need care — but if you do, the care can be extremely expensive.


This tells you right away that health care can’t be sold like bread. It must be largely paid for by some kind of insurance. And this in turn means that someone other than the patient ends up making decisions about what to buy. Consumer choice is nonsense when it comes to health care.


The second thing about health care is that it’s complicated, and you can’t rely on experience or comparison shopping.


Between those two factors, health care just doesn’t work as a standard market story.


There are [around the world] ... no examples of successful health care based on the principles of the free market, for one simple reason: in health care, the free market just doesn’t work.

To summarize Krugman's argument, the buyer can't really make fully rational choices about what and how much health care insurance to buy based upon either supply or need.

There's a third and even more fundamental point that needs to be stressed, though Krugman passes it by. It's this: Unlike TVs or bread or blue jeans, health care is not something the 'consumer' can take or leave, or find a substitute for. When you need it, you need it. It's not about possessing things, it's about pain or retaining the ability to function or life itself. Ultimately it's about freedom.

It's about the third of Roosevelt's four freedoms: Freedom from want.

In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms.


The third is freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants -- everywhere in the world.

Indeed as FDR remarked very simply in that famous address to Congress in 1941:

We should widen the opportunities for adequate medical care.

There is no legitimate marketplace anywhere in the world for human liberty. In most parts of the modern world, adequate health care is considered to be not a marketable commodity but a human right. So it ought to be considered in the US as well...not merely for those who already qualify for Medicaid or Medicare, but for all of us.

Instead, what the politicians in DC are debating is how to bolster the failed for-profit model of American health insurance by application of just the smallest possible public remedy. The issue, in their minds, has become 'How little can we do?' rather than 'What needs to be done?'.

Bob Somerby has perfectly distilled how far President Obama has climbed down from actually trying to fix what is essentially wrong with the health care fiasco in the US. Now the administration's goal, evidently, is to prune back perhaps 30-50% of the health-care spending that is wasted under the American for-profit model. Because permitting considerable waste, evidently, is a good thing as long as it keeps the politically powerful health-insurance industry at least somewhat fat and happy. Here is Obama at his Wednesday press conference:

Right now, premiums for families that have health insurance have doubled over the last 10 years. They've gone up three times faster than wages. So what we know is that, if the current trends continue, more and more families are going to lose health care, more and more families are going to be in a position where they keep their health care but it takes a bigger bite out of their budget.

Employers are going to put more and more costs on employees or they're just going to stop providing health care altogether.

We also know that health care inflation on the curve that it's on, we're guaranteed to see Medicare and Medicaid basically break the federal budget. And we know that we're spending _ on average we, here in the United States, are spending about $6,000 more than other advanced countries where they're just as healthy.

And I've said this before, if you found out that your neighbor had gotten the same car for $6,000 less, you'd want to figure out how to get that deal. And that's what reform is all about. How can we make sure that we are getting the best bang for our health care dollar.


And that's why I say, if we can - even if we don't reduce our health care costs by the $6,000 that we're paying more than any other country on Earth, if we just reduced it by $2,000 or $3,000, that would mean money in people's pockets, and that's possible do.

Talk about setting your sights low. It seems that the entire exercise of pushing through this legislation is directed toward retaining the massively inefficient, incoherent, and harmful American health-insurance industry we've grown to hate, but trimming back some small part of its that our fellow citizens will be gouged somewhat less in the future than they would otherwise be.

That's not true reform, but rather an inoculation against real reform at the very time that the public is demanding action. All the health-care 'reform' legislation coming out of congressional committees this summer is to a greater or lesser degree inadequate to addressing the actual crisis we face. At best, it might produce barely perceptible results beginning perhaps a decade from now by acting as a very modest check against some of the run-away costs. It's main effect will be to blunt the movement to reform health care in the US, however, by bringing it into utter disrepute.

crossposted at

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Thursday, July 16, 2009

  Can right-wingers read? Pt. 2

The recently released inspectors general report on Bush's warrantless surveillance programs had almost nothing positive to say about them or John Yoo, who provided specious legal justifications for those programs on demand. Today Yoo lashes back at the inspectors in a Wall Street Journal op-ed. His matrix of illogic is so dense that the piece appears to be intended to make your eyes bleed. In the interest of public welfare, I'll supply a summary:

Shorter John Yoo: I don't understand the Foreign Intelligence Surveillance Act of 1978. And neither do you.

There are so many deplorable gaps and misstatements (as with his many Bush-ear OLC opinions) that the question naturally arises: Can John Yoo read?

Yoo doesn't understand the clear meaning of the FISA law or how it was updated since 1978.

Yoo isn't aware that the FISA law came into existence in 1978, long after Franklin Roosevelt's death.

Yoo makes a constitutional argument without displaying any apparent awareness of the text of the Constitution.

Yoo doesn't understand what was at issue in Youngstown v. Sawyer, with its landmark ruling by the Supreme Court on the balance between Congressional and Presidential power.

Yoo quotes from but evidently hasn't read the Federalist Papers.

Yoo hasn't even read what he himself wrote about the Patriot Act in 2003.

Traditionally it has been John Yoo's writings that have evoked horror and disgust. But the deeper problem appears to be Yoo's reading ability.

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  Can right-wingers read?

Any post with a title such as that probably should be an ongoing series.

Today the right-wing nuts hostile to health care reform have seized upon and uncritically parroted a frivolous accusation made by the hyper-right-wing Investor's Business Daily. Their absurd claim is that the House Democrats' health care bill would outlaw private health insurance. The evidence? A single sentence snatched out of context from a document of more than 1,000 pages.

Here's the accusation:

The provision would indeed outlaw individual private coverage. Under the Orwellian header of "Protecting The Choice To Keep Current Coverage," the "Limitation On New Enrollment" section of the bill clearly states:

"Except as provided in this paragraph, the individual health insurance issuer offering such coverage does not enroll any individual in such coverage if the first effective date of coverage is on or after the first day" of the year the legislation becomes law.

So we can all keep our coverage, just as promised — with, of course, exceptions: Those who currently have private individual coverage won't be able to change it. Nor will those who leave a company to work for themselves be free to buy individual plans from private carriers.

What IBD neglects to mention is that the subheading that this sentence occurs under reads: GRANDFATHERED HEALTH INSURANCE COVERAGE DEFINED. That's what "such coverage" in the quoted sentence refers to. The bill does of course allow other health insurance plans to be developed in the future, but they're just not grandfathered.

You'd have thought that before making the accusation, or parroting it, the right-wingers would have read the relevant part of the bill (PDF). Brings us back to our original question.

One high-profile right-wing nut who evidently didn't bother to read the bill before parroting IBD, later posted this hilariously revealing update:

Reader Patrick Ying disagrees:

Investor’s Business Daily did not continue to read the bill to page 19. “Individual health insurance coverage that is not grandfathered health insurance coverage under subsection (a) may only be offered on or after the first day of Y1 as an Exchange-participating health benefits plan. ” It does not outlaw individual private coverage – you can still buy the plan on the Exchange where they will compete with the public option, not be replaced by it. The advantage of the Exchange, is that the coverage no longer has one of the problems of individual coverage – skyrocketing premiums should you become ill.

Hmm. We should have more time for all this stuff to be sorted out. Instead they’re ramming it through as quickly as possible. That makes me suspicious.

The "stuff" will be sorted out by those who bother to read it, of course. Hmm. Now that is suspicious.

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Saturday, July 11, 2009

  The weaknesses of the FISA inspectors general reports

In my recent post highlighting aspects of the newly declassified version of the report about Bush's warrantless surveillance, I took it for granted that the inspectors general produced a thoroughly inadequate overview of the programs. Perhaps I shouldn't have left that unsaid.

One year ago almost to the day I predicted that any such FISA investigations by the intelligence agency inspectors general would be hobbled and blinkered, and would result in reports that have little merit. That commentary is still worth reading. One thing to add to it, now that we've seen the first such IG report: Two of the five inspectors involved (for CIA and DoD) are in fact "Acting" inspectors general – which makes their independence and authority all the shakier.

No surprise then that practically everything that matters is treated poorly or not at all in the unclassified version of the IG report.

It tells us nothing about which topics the inspectors general wished to but were unable to investigate adequately.

It tells us virtually nothing about the most controversial "Other Intelligence Activities" (which even Bush's own DoJ lawyers rebelled against in 2004). It tells us nothing about whether any or all of these programs were illegal. Nothing about why DoJ officials concluded that many of the programs were illegal. Nothing about what pressure if any was brought on government lawyers to produce opinions testifying to the programs legality. Almost nothing about why John Yoo was given carte blanche to whip out such opinions, without any oversight in the OLC.

It tells us very little about who was responsible, and by what steps, in the creation of seemingly illegal surveillance programs.

It tells us nothing about who was being surveilled, or how, or how often, or how many people were affected. Nothing about how many purely domestic communications were intercepted. Nothing about whether legally privileged or business or personal or political or journalistic communications were intercepted. Nothing about increases or decreases or other changes in the programs over time.

It tells us nothing about what the cooperating telecoms knew, or how willingly they cooperated.

It tells us very little about how much new and actionable intelligence these seemingly illegal programs produced. It tells us little about how much 'poisonous fruit' ended up befouling terrorism prosecutions being brought by the FBI.

And it doesn't seem to make any attempt to assess whether the statements made about the programs by Bush administration officials were on the whole accurate.

crossposted at

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  The Anita-Hillification of Frank Ricci

When Anita Hill was set to testify at Clarence Thomas' Senate confirmation hearings in 1991, reactionaries feared that her comments would be unhelpful to Thomas and promised to demonize her. For example, here was GOP Senator Alan Simpson:

"She will be injured and destroyed and belittled and hounded and harassed, real harassment, different from the sexual kind, just plain old Washington variety harassment."

Now many self-styled 'liberals' appear intent on demonizing an upcoming witness in Sonia Sotomayor's confirmation hearings, firefighter Frank Ricci. The reason again this time is that the testimony might be unhelpful to the nominee.

In the last few days there has been a surge on line of poorly reasoned and tendentious commentaries whose purpose is to depict Ricci as overly litigious ("Ricci...then sued, yet again") and even as hypocritical ("Ricci was singing the opposite tune"). This operation has involved a classic whispering campaign:

Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who's at the center of Sotomayor's most controversial ruling.


On Friday, citing in an e-mail "Frank Ricci's troubled and litigious work history," the liberal advocacy group People for the American Way drew reporters' attention to Ricci's past. Other advocates for Sotomayor have discreetly urged journalists to pursue similar story lines.


No People for the American Way officials could be reached Friday to speak on the record about the press campaign.

What none of those involved in the campaign seem to acknowledge is that (a) there were fully 18 firefighters who brought suit against New Haven, and (b) at issue in the confirmation hearings is not the motives of any of the plaintiffs but rather Sotomayor's controversial decision to agree to a summary judgment in that case. The NYT's Adam Liptak described that decision as "remarkably cursory" and "baffling". Many commentators and jurists (including it seems the entire Supreme Court) fault that summary judgment as wholly inadequate to the case.

The appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court, which heard arguments in April and is likely to issue a decision this month.

The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.

There is evidence that the three judges in the case agreed to use a summary order rather than a full decision in an effort to find common ground.


The district court judge in New Haven, whose opinion the appeals court panel affirmed and adopted, did identify three earlier Second Circuit decisions concerning the use of race by the government in hiring and promotional exams. But they did not involve precisely the same issues.


In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.

Such a 'compromise', however, would appear to be in violation of the 2nd Circuit's own rules, which require that summary judgments be used only "in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion". Ricci v. DeStefano seems like a classic instance where major legal issues needed to be resolved, there being no clear binding precedents. Thus a summary judgment would have been inappropriate.

That is the issue that Sotomayor's advocates wish to cloud by attacking the lead plaintiff, Ricci. Like the other plaintiffs, he obviously thinks he has a legitimate grievance given that Sotomayor's three-judge panel heard lengthy arguments in the case but then dismissed it without even providing a clear justification.

As for the question of Ricci's motives, it's irrelevant whether or not his own resentment of wrong-doing is too finely calibrated. Despite Dahlia Lithwick's injudicious attempt to portray Ricci as a serial litigator, the fact is that he has brought suit only twice. None of those who are lambasting Ricci as a troublemaker have much at all to say about the facts of his 1995 suit against the New Haven fire department. The most awkward fact, for his critics, is that the city settled the suit completely in Ricci's favor in 1997 before it went to court. Even as a 20-year-old, it seems that Ricci was unusually well qualified and highly praised as a firefighter. The entire basis for Ricci's earlier suit was that he'd been discriminated against illegally because of his dyslexia. His later, more famous suit also centered on a claim of illegal discrimination. Whatever the merits of the cases (both of which Ricci won), those are consistent points of view and very far from hypocritical.

The fact that Ricci also once was fired in another Connecticut town in 1998 and then filed a complaint with the state Labor Department, which he lost, tells us little by itself. Ricci claims that he was fired for investigating safety violations. The town was fined for such violations subsequently. It's not always easy to win disputes before labor boards, and even harder to prove that firings were due to retaliation. We'd have to know many more details in this episode to have any chance of clarifying what actually happened - much less gauging whether Ricci behaved responsibly. I suspect that in different circumstances – that is to say, if his critics were less unsympathetic to him – they'd be perfectly happy to apply the term 'whistleblower' to Ricci in regard to his 1998 complaint.

It's pretty sad that ordinary citizens can't testify about their knowledge of high-profile judicial nominees without calling down ideological wrath upon themselves.

crossposted at

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Friday, July 10, 2009

  IG report on Bush's warrantless surveillance program

The shameful FISA 'modernization' law passed by Congress last July, which retroactively legalized the egregiously illegal (and still mysterious) electronic surveillance of Americans instituted by George Bush, had at least one modestly useful provision: It required the inspectors general of the DoD, DoJ, NSA, CIA, and ODNI to produce a report on the history and scope of the secret Bush surveillance. The unclassified version of the IG report has now been made public (PDF).

It tells us few details about the surveillance programs and its conclusions are so tame as to be risible. On the other hand, it does contain some food for thought.

First, very strikingly, several top Bush administration officials refused to be interviewed by the inspectors general for this report. The IG investigation was mandated by Congress in exchange (it was a terrible 'bargain') for permitting the lawlessness of the Bush surveillance programs to be swept under the carpet permanently. But the following key figures in the White House, the DoJ, and the CIA gave the inspectors general the brush off: Andrew Card (Bush's Chief of Staff); David Addington (Cheney's CoS and Counsel); John Ashcroft (AG); John Yoo (DoJ's Office of Legal Counsel); and George Tenet (CIA).

Second, the report acknowledges what many of us surmised in 2007 from circumlocutions used by Alberto Gonzales in testimony to the Senate Judiciary Committee - that what Bush termed the 'Terrorist Surveillance Program' (the interception of international communications into the US by suspected Al Qaeda operatives) constituted only one of the warrantless surveillance programs that Bush was authorizing without seeking permission from the FISA Court. The IG report lumps all of Bush's other warrantless programs, essentially mysterious to us, under the rubric "Other Intelligence Activities". Together the TSP and the OIA are termed the "President's Surveillance Program" (PSP).

The inspectors general tell us nothing substantive about these "Other Intelligence Activities". Their report does however note that when John Yoo's legal memos (see below) were reviewed in 2003 by DoJ officials Jack Goldsmith, Patrick Philbin, and James Comey, they were found to be particularly weak in regard to justifying the "Other Intelligence Activities".

Third, it's worth emphasizing that the repeated presidential authorizations for warrantless surveillance programs, for years on end, were made under a presidential assertion that a more or less permanent state of emergency existed. The Justice Department's Office of Legal Counsel did its part in undermining the Constitution by holding, again and again, that the existence of a threat of terrorism within the United States made warrantless surveillance "reasonable" under the Fourth Amendment. The 'evidence' for such a permanent threat, assembled regularly by the CIA, consisted in part of the surveillance that had already been conducted without warrant. In other words, it was a self-perpetuating cycle.

The Presidential Authorizations were issued at intervals of approximately every 45 days. As described in the next section, with each reauthorization the CIA and later the NCTGC prepared an assessment of current potential terrorist threats and a summary of intelligence gathered through the PSP and other means during the previous authorization period. The Department of Justice's Office of Legal Counsel reviewed this information to assess whether there was "a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to [continue] to authorize the warrantless searches involved" in the program. The Office of Legal Counsel then advised the Attorney General whether the constitutional standard of reasonableness had been met and whether the Presidential Authorization could be certified "as to form and legality." Each of the Presidential Authorizations included a finding to the effect that an extraordinary emergency continued to exist, and that the circumstances "constitute an urgent and compelling governmental interest" justifying the activities being authorized without a court order.

Fourth, Alberto Gonzales opined to the inspectors general that the involvement of the Justice Department in this legal sham every 45 days was important because (a) it helped to convince the private telecoms to go along with programs that violated the clear letter of the law, and (b) it would help in the event of future investigations into those involved in implementing the illegal programs.

[Alberto Gonzales] also stated that it was important that the cooperating private sector personnel know that the Attorney General had approved the program. In addition, Gonzales said that for "purely political considerations" the Attorney General's approval of the program would have value "prospectively" in the event of congressional or inspector general reviews of the program.

Fifth, from 2001 to May 2003 John Yoo was the only person at the Office of Legal Counsel, and one of only three non-FBI personnel at the Justice Department, to be read into the warrantless surveillance programs. Yoo's nominal supervisor at OLC, Jay Bybee, was kept out of the loop and had "no idea" how his deputy John Yoo drafted the OLC memos that (according to Gonzales) gave "a sense of legitimacy" to the programs. Those memos were of course scandalously incompetent, a fact that caused consternation at OLC after Yoo's departure.

Sixth, the lawyers got involved in generating opinions in support of the legality of the programs only after Bush had begun authorizing them in October 2001. That was when Attorney General Ashcroft was read into the program, and the same day he authorized it. At OLC, John Yoo did not produce his first memo supporting the legality of these warrantless surveillance programs until November 2, 2001. The NSA lawyers as well were kept out of the loop until after Bush authorized the program in consultation with NSA Director Hayden – at which time the NSA lawyers dutifully "supported the lawfulness of the resulting program".

Seventh, George Bush's account of the genesis of the warrantless surveillance is definitively shown to be false (as I had surmised here two years ago). After the controversial programs became public, Bush tried to portray himself as an innocent bystander in their development. Bush wanted voters to believe that he'd merely implemented something that the NSA Director had wanted to do.

The spying that would become such a divisive issue for the White House and for General Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.

"Is there anything more we could be doing, given the current laws?" the president later recalled asking.

General Hayden stepped forward. "There is," he said, according to Mr. Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.

By all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

Well, not quite all accounts. At the time this NYT report appeared, I commented that it was incoherent because its sources tried to portray Cheney –improbably - as doing little more than cheerleading on behalf of Hayden's initiative. More likely, I thought, the pressure for warrantless surveillance programs came from Cheney first, and Hayden eventually bowed to the pressure.

The new IG report confirms that my interpretation of events was right (from page 5):

In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP [President's Surveillance Program].

Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities.

So, the IG report has nothing about a dramatic face-to-face meeting between Bush and Hayden. Instead, Tenet was sent to pressure Hayden to have the NSA do more, and we can infer that Hayden responded that he would expand surveillance if he received explicit authorization.

This section of the history of the programs is critical, but notice how briefly and vaguely the inspectors general treat it. In particular, nobody is identified as having sent Tenet to talk to Hayden. Tenet merely chats with Hayden "on behalf of the White House". Who in the 'White House'? We're not told, and that fact speaks volumes I think. It was Cheney, and the inspectors general don't care to say so at least in their unclassified version of the report.

Eighth, much of the declassified IG report is devoted to a detailed narrative of how lawyers at the post-Yoo Justice Department refused to continue backing the surveillance programs in March of 2004. Little here appears to be new, though I do not remember knowing that after Bush reauthorized the programs without DoJ concurrence, FBI Director Mueller told Bush that he would remove the FBI from participation in the programs. Mueller also threatened to resign if Bush required the FBI to continue participating in the program.

Ninth, in 2006 the Justice Department's Inspector General investigated the value to the FBI of the intelligence generated by the warrantless surveillance programs. As referred to in this combined report, the classified 2006 study appears to have found that the programs generated lots of useless 'leads' and relatively little of any value (it "concluded that although PSP-derived information had value in some counterterrorism investigations, it generally played a limited role in the FBI's overall counterterrorism efforts").

Meanwhile Michael Hayden as CIA director, and some of his immediate subordinates, have touted the importance of PSP-derived information in CIA activities. However the Inspector General for the CIA found that the CIA was not tracking the information it received in such a way as to be able to substantiate such claims about its importance. CIA officials also told the Inspector General that much of the PSP-derived information was "vague or without context", rendering it of little use.

Tenth, the DoJ Inspector General's report found that Alberto Gonzales' testimony about the warrantless surveillance programs to the Senate Judiciary Committee was "confusing, inaccurate, and had the effect of misleading" those who hadn't been read into the program. Gonzales falsely told the Committee that the March 2004 dispute between the DoJ and the White House was unrelated to the "Terrorist Surveillance Program" whose existence Bush had acknowledged. Gonzales also falsely said that DoJ lawyers had no concerns about that program's legality.

Rather bizarrely, however, the DoJ Inspector General's report concluded that Gonzales "did not intend to mislead Congress".

crossposted at

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Wednesday, July 08, 2009

  How the mighty have fallen

Former Attorney General and White House Counsel, Alberto Gonzales, helped to preside over a great many crimes as a flunky in the Bush administration. Who'd have thought, that scandalous record along with his scrumptiously perforated memory eventually made Gonzales nearly unemployable after he was pushed out of office in 2007. The best he's been able to turn up have been very small, temporary jobs.

Now he's found another temporary employer, Texas Tech. Despite Karen Tumulty, it appears pretty obvious that the University is less than eager to draw attention to its association with Gonzales.

As Texas Tech announced in a July 7 press release, Gonzales will be advising them on a "minority student leadership training and development program" and teaching a single undergraduate course this fall in the Political Science Department. It's a department with around 45 graduate students, so the assignment of an undergraduate course to Gonzales speaks volumes about how he's viewed by the faculty.

Remarkably, the people quoted by the University press release do not include the PoliSci chairman or any of the department's faculty. A reporter at the Austin American-Statesman who broke the story on the 7th did obtain a statement from someone inside the department, but it was a staff member and merely confirmed that Gonzeles was teaching a single course.

His appointment as a temporary/part-time 'visiting' professor very probably did not require any vote by the department's faculty – and one suspects that is how Gonzales managed to get it. It looks like a decision made at the upper levels of the administration and more or less imposed on the PoliSci Department. Nothing about Gonzales' appointment nor the undergraduate course he's teaching appears anywhere on the department's website.

Apparently the appointment was made in a way to evade attention as much as possible. The University released the information only after the Austin reporter had pried it out:

In a press release issued hours after I inquired, the university said that as of Aug. 1, Gonzales will join the Texas Tech University System...

If the decision to hire Gonzales was made at all recently, it smells as if the Texas Tech administration wanted to do it while most of the faculty were away from campus during the summer. There will be no faculty meetings for several months, at which resistance to the Gonzales appointment might have been organized or complaints expressed.

The University press release does not acknowledge that any controversy at all exists regarding Alberto Gonzales.

crossposted at

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