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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

In recent days there has been a spate of news stories and editorials on whether the US intelligence community might have greatly overstated Iraq's WMD capacity and, if this is so, why this might have happened.

First, let's stipulate that if we eventually find that Iraq had few if any continuing WMD programs, that would be a major intelligence failure.

Yet, we're far from that point. What we can see -- and this is the point of this new second-guessing -- is that the maximalist estimates -- those of vast chemical and biological programs and a reconstituted nuclear program -- almost certainly cannot have been true. If these estimates had been accurate, we likely would have found more evidence of such efforts. And -- even more likely -- we would have found someone, somewhere in the program to squeal.

What most of these articles and editorials share is a willful blindness or agnosticism toward the reality that must be clear to almost anyone who has followed this story over the last year. If there was a failure it was not an intelligence failure, but a political one -- one among administration political appointees and those at the very highest level of the intelligence apparatus.

The story, again and again over the last eighteen months, has been of the intelligence bureaucracy generating estimates of Iraq's capacities that are pretty much in line with what we're now finding. Again and again, though, the political leaders sent them back to come up with better answers. The narrow facts of what I'm saying aren't even in dispute, only the interpretation, and then only at the margins.

Over the last year, the word from folks at the Pentagon or from hawks close to the Office of the Vice President has been that the career people at CIA and the other intelligence agencies were either too cautious in their estimates or were intentionally low-balling their figures in order to undermine the arguments for a war they did not themselves support. Whether that was true or not, the salient point is that the politicals would not believe what the career intelligence types were telling them. The examples are almost too numerous to count -- on chemicals, biological, nuclear programs, al Qaida links, everything.

(This doesn't even get into the related issue of the heavy culling of uncooperative career civil servants at the Pentagon -- many of whom were shut out and eventually left for assignments on the Hill, National Defense University and other similar locales because their advice, expertise and questions were deemed unhelpful to the cause.)

Our intelligence agencies have all sorts of problems. But they got this one pretty close to the mark. Anyone who acts as though we've got to examine why our intelligence agencies missed the boat on this one is either being willfully misleading or simply hasn't been paying attention.

Here's another thread of the Tom DeLay/Texas Redistricting story. It hasn't yet gotten much attention. But it played an important role in the lead-up to the confrontation two weeks ago. It has to do with alleged Voting Rights Act violations tied to the DeLay-backed Texas redistricting bill.

Richard Raymond is a Democratic member of the Texas House of Representatives from Laredo. During the time the DeLay-backed redistricting bill was moving through the House, it was in the hands of State Representative Joe Crabb (R-Atascocita), chairman of the Republican-controlled redistricting committee. Raymond charged that in the process of rushing it through the legislative process, Crabb had violated the Voting Rights Act -- the particulars are complicated but they have to do with legal requirements for bilingual notice and comment of changes to legislative districts, and so forth. (Raymond's district is heavily Hispanic.) Raymond made a formal complaint to the Justice Department's Civil Rights Division, dated May 7th.

This complaint was at least a complication for moving the redistricting bill through the House, as Texas Republicans were then trying to do.

Now here's where the story gets murky.

Earlier this month DeLay went to Texas to personally lobby for the new redistricting bill. According to Raymond, Republican colleagues of his from the House came to him and told him the following: DeLay had told them and other anxious House Republicans not to worry about Raymond's Voting Rights Act complaint because he had gotten the complaint taken care of at DOJ and it would be quickly dismissed, in time to pass through the redistricting bill. In the words of Raymond's lawyer, Raymond said he had "received reliable information that the normal processes of the Department of Justice for such complaints have been circumvented under pressure from Congressman Tom DeLay of Texas." (To the best of TPM's knowledge, there is no independent evidence of Raymond's charges.)

After this, Raymond withdrew his complaint to the Justice Department, arguing that his constituents could not recieve a fair hearing there, and filed a lawsuit -- making the same claims as the original complaint -- in federal court in Texas.

Last week I asked DeLay spokesman Stuart Roy if there were any truth to Raymond's charges about inappropriate contact between DeLay's office and Justice. He said there was not. Roy said DeLay's office had contacted Justice about Raymond, but only after Raymond publicly charged DeLay with trying to get his complaint dropped. (Still with me? Good.) According to Roy, this contact was strictly for the purpose of ascertaining whether Raymond had filed a formal complaint against DeLay and, if so, why DeLay's office hadn't been notified.

These claims and counter-claims have triggered an acrimonious correspondence between Raymond's attorney and the Justice Department. Copies of three key letters -- including one from Assistant Attorney General for Civil Rights Ralph F. Boyd, Jr. -- have just been added to the TPM Document Collection.

"This smells, and I'm going to ask Andy Card of the White House to get into this this week, to examine any contacts that any federal officials had with federal departments..."

That's from Joe Lieberman this morning on Fox News Sunday. It's still a tad understated. But at least Lieberman is pushing this issue, which is more than you can say for just about any other politician beside the Democrats in the Texas congressional delegation.

We'll see if Lieberman follows through.

Let's get back to why so few in the press or among pols on the Hill are willing to take DeLay on.

With the pols, I think the answer is fairly straightforward. DeLay's a bully. He threatens and brow-beats people and doesn't give up. Democrats are sadly cowed by him. For people in his own party, DeLay is also a very important conduit of money. So he's not someone you want to cross. (One seldom-discussed part of the state redistricting story is how dependent Republicans in the Texas state House were on DeLay's financial largesse, and how important this was in bringing the crisis to a head.)

Journalists have given DeLay a wide berth for a distinct but related reason. For most of them, the story reeks of what people in the business call dog-bites-man. In other words, it's just not surprising enough to be news. DeLay is widely-known -- even relishes his reputation -- for hardball, envelope-pushing tactics. The exploits of his money and access machine are both legendary and notorious. So, in a sense, where's the story?

This and the Lott debacle are different in many ways. But in this respect they are similar. At least in the first few days, no one gave the Lott situation much attention because pretty much everyone knew that Lott was fairly unreconstructed on racial issues. (After all, only three years before, his close ties to a white-supremacist group had been widely reported in the Washington Post and other papers.) So it really wasn't such a surprise that he thought this way.

DeLay is reaping a similar advantage because of what people in town already know about him. If it were Tom Daschle, and not Tom DeLay, I guarantee the reaction would be quite different. But it's not simply a partisan or bias issue. It wouldn't be the same with Bill Frist or Denny Hastert either. Some of this -- no doubt -- is due to the lack of a Republican mau-mau to stir up interest and push the press to pursue it. But a lot of it is the prism through which journalists themselves are seeing it.

The key here is that DeLay is benefitting greatly from his long-established reputation as someone who hugs the letter of the law while breaking its spirit, it not more, again and again.

How else do you explain the following situation: the House Majority Leader was directly and intimately involved in activities that are now the subject of investigations by two cabinet departments and grand jury proceedings in Texas. Yet Washington is still barely paying the matter any attention. How do you explain that?

Tim Russert, Lord of the Consensus, then (12/8/02) and now (5/25/03) ...

On Trent Lott, December 8th of last year ...

MR. RUSSERT: I want to talk about the removal of the Bush economic team. But one last point on race. David Broder, Trent Lott, the majority leader of the Senate, was at a birthday party for Strom Thurmond the other day and had this to say: "I want to say this about my state. When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead, we wouldn't have had all these problems over [all] these years, either."

John Lewis, a congressman, former civil rights leader, said that Strom Thurmond ran a segregationist campaign in 1948 and that Trent Lott is just dead wrong. Jesse Jackson called NBC News this morning and said Trent Lott is a Confederate and he should resign as majority leader. How big of a problem is this for Trent Lott?

MR. BRODER: It's not the first time that he has had to explain his association with or references to that kind of race-focused rhetoric in the South. He was involved a few years ago speaking to a group that was pretty overtly racist in the South. Race remains, much as we would like it to be otherwise, a very, very important factor in our national life. And it is a decisive factor in Southern politics. Any Southern politician that you talk to can tell you with precision exactly what percentage of the white vote he or she needs to get, because all of them assume that 90 percent or more of the black vote is going to the Democrats. As long as that racial divide continues, any kind of comment like this on Senator Lott's part is going to be--have all kinds of bad resonance.

MR. RUSSERT: Bob Novak?

MR. NOVAK: This was a birthday party, 100th birthday party, for Strom Thurmond. Trent Lott got out there and he winged it. That's one of the dangers of not having a text. He thought it was a social occasion. He's thinking what comes to his mind. He's saying--if you listen to the whole speech, he's making extravagant statements about Strom Thurmond, as he should on his 100th birthday. And he goes over the line. Now, the idea that Trent Lott thinks we should have a segregated America, that we should have had Strom Thurmond and Fielding Wright--Remember Fielding Wright, Tim?--his vice presidential candidate, as the people running America in 1949...

MR. SAFIRE: Well, nobody else remembers that.

MR. NOVAK: ...is--it's nonsense. And I think that the idea that Jesse Jackson wants him to resign is ludicrous. I think it was a mistake. I don't think he was at all serious, and I don't even think we should dwell on it. The idea that race is important, I think, is the biggest problem for the Democrats as it is for the Republicans. And in South Carolina, where they had a disaster on November 5th, they were relying on the black vote and there are just not enough blacks to do it.

MR. RUSSERT: Joe Klein?

MR. KLEIN: Well, I don't know. Maybe we should dwell on it a little bit, especially in an atmosphere where any Democrat is immediately saddled--where Max Cleland was saddled with Osama bin Laden in TV ads in Georgia. I think that if a Democrat had made an analogous statement, like if Henry Wallace had been elected in 1948, we would have had a much easier road with the Soviet Union because we would have just given them everything and there wouldn't have been a Cold War. You would have been jumping up and down. And I think that this kind of statement in this country at this time is outrageous, and it should be called that.

MR. NOVAK: I think the problem, Joe, is that he didn't come out with a statement saying, "Boy, oh, boy, I thought this over and we should have had a Thurmond administration." He's at a damn birthday party. I mean, this is the kind of thing that makes people infuriated with the media, is they pick up something that's said at a birthday party and turn it into a case of whether he should be impeached.

MR. KLEIN: Yeah, it's the media's fault.

MR. NOVAK: Yeah, right. I think it is that we're talking about it.

MR. BRODER: Why does the thought cross his mind that he...

MR. NOVAK: David, he's kidding around. He is--I don't know if you watched that speech. They were saying that this was the greatest living American, which Strom Thurmond certainly is not. It's his birthday. He's saying all these things. Boy, if he had been elected, we'd have been better off. Why don't we forget it?

MR. SAFIRE: The thing that comes to mind with me is what we've all said here, that the black vote is monolithic, that it's running 90 and 92 percent Democratic. I think that's bad for black Americans. I think the same thing with Jewish Americans, that vote monolithically Democratic. The whole notion of losing your influence by being taken for granted is a great mistake by any ethnic or racial community.

And on Tom DeLay this morning ...
MR. RUSSERT: It's a very interesting time, generally, in my experience in Washington, intelligence, foreign policy truly became a bipartisan adventure mostly unless something went wrong and then there would be a lot of finger-pointing. More and more it seems to be breaking down along party lines. The most recent example was this Washington Post editorial Friday about something that happened in Texas. State legislators fled the state to avoid a vote on redistricting, went to Oklahoma. Congressman DeLay's office has now acknowledged they called the Department of Justice and the FAA. The Washington Post wrote this editorial: "...somehow the search for the missing [Texas] Democrats came to involve the U.S. Department of Homeland Security, and state records concerning the search were ordered destroyed... The public deserves convincing evidence that the document destruction was routine, not an effort to cover something up. ...The public is entitled to know how a Cabinet department formed to protect America from terrorists ended up looking for Democrats who didn't want to show up for work."

Senator Biden, what's going on?

SEN. BIDEN: Well, on the overall question of foreign policy, 100 percent of the Democrats supported the Republicans on Afghanistan, 80 percent of the Democrats supported it on Iraq. So I think that's an exaggeration to say there's a split. You look around here, these two guys are more together and we're more together, and we're Democrat-Republican, split. But on this issue of whether or not you'll use domestic tools for--that are in the realm of foreign policy-related for domestic purposes, I don't know enough to comment on that. I mean I just don't know what happened there. I'm just not qualified to comment.

MR. RUSSERT: Anyone?

SEN. HAGEL: I think they all went to Kansas. If they really wanted to get lost, that's where they'd go.

MR. RUSSERT: Whoa.

SEN. ROBERTS: Well, I shouldn't say this, but they were in Dodge City, Kansas, and we hosted them. We had a barbecue, and it was--because our barbecue is a lot better than Texas barbecue and Oklahoma barbecue, and you can see just exactly what light I think this should be put in.

MR. RUSSERT: There goes the vegetarian vote, Senator Roberts. Senator Roberts, Senator Rockefeller, Hagel, Biden. Roberts, Rockefeller, Hagel, Biden. That's a new Washington law firm, I think.

SEN. ROBERTS: That's exactly right.

MR. RUSSERT: Coming next, two former CIA directors, Admiral Stansfield Turner and William Colby speak out almost 20 years ago about Middle East terrorism and Islamic fundamentalism.

Hard hitting stuff.

Generally speaking, when a political scandal has serious legs, every day brings more damning details, with the momentum and seriousness of the new revelations increasing day by day. You also find out that seemingly voluntary disclosures from subjects of scrutiny were prompted by the knowledge that the information was about to come out through other, often more awkward, means.

That's precisely what's happening in the Tom DeLay/DPS/DHS story.

I got word earlier today that Transportation Secretary Norm Mineta had started an internal review to see if anything untoward had happened when Tom DeLay contacted the FAA and received information about the whereabouts of former Texas House Speaker Pete Laney. (Note to Source -- you know who you are -- you win big points from me on this one, buddy. I'll never doubt you again!) I was traveling this afternoon and didn't have time to follow up. But tomorrow's papers confirm that this has indeed happened. According to a Transportation Department spokesperson, Mineta found out about DeLay's contacts with the FAA on Wednesday, a day before DeLay 'volunteered' the information.

There are a number of articles giving the basic run-down of these details. But the best I've seen is that in the Houston Chronicle.

You begin to understand why Mineta might be concerned when you look down into the story and see how a significant part of the story DeLay told on Thursday now seems to be, as Nixon Press Secretary Ron Ziegler used to say, 'inoperative.'

When DeLay spoke to reporters on Thursday he said that the information he'd gotten from the FAA about one of the Texas Democrats' private airplanes was information that was available to any member of the public. This revelation rightly raised eyebrows since this was the information DeLay relayed to his political allies in Texas. And it was also the information used to rope in the Department of Homeland Security. In itself though it didn't appear to be a problem since this was supposedly information the FAA makes available to everyone.

Well, it turns out that's not true.

Here's the key run-down in the Houston Chronicle story ...

DeLay told reporters Thursday that one of his staff members contacted the FAA for "publicly available flight information that any member of Congress gets from FAA, or you can get it off the Internet."

He said he relayed to Craddick the information that the plane was in the air heading from Ardmore to Georgetown, but doesn't know whether that information led to the discovery of the Democrats in Oklahoma.

DeLay's office clarified Friday that the majority leader did not mean to imply that the FAA flight data was publicly available, but rather that the public could gain access to the information via commercial Web sites.

Bill Shumann, FAA spokesman, said the public does not have access to flight tracking data through his agency. But the information, generated by air traffic control centers throughout the country, is bundled and used by commercial companies, some of which make the data available online.

This, frankly, is a pretty big deal since it is really not that different from what the state trooper in Texas did with Homeland Security. Though some of this information is, according to the FAA spokesman, available through commercial services, DeLay clearly used his status as House Majority Leader to get the information directly from the FAA and presumably to do so more expeditiously than members of the public would be able to do. That's called abusing your office.

Why is the Majority Leader of the House of Representatives using the powers of his office to help his political allies in Texas arrest members of the state legislature so they can be forced to make a quorum call and allow the passage of the DeLay-authored redistricting plan?

(Earth to David Broder, Chris Matthews, Tim Russert and the rest of DC's wizards of high dudgeon: when will you start talking about this?)

There's also another significance to DeLay's use of his office to obtain information from FAA. His willingness to bend the rules in that instance makes it a lot easier to imagine he played some role in getting the Texas state troopers to call in Homeland Security.

That all focuses a lot more scrutiny on whatever contact took place between DeLay and Craddick on Monday, May 12th, the day all of this went down. Here again is a clip from the Chronicle ...

In disclosing the Transportation Department's inquiry, spokesman Alcivar would not say exactly which office of the FAA provided the information for DeLay. Nor would he say whether DeLay used normal channels available to congressional offices for obtaining information not otherwise available to the public.

The details are significant because they could answer questions about how Craddick was able to discover that most of the so-called "Killer Ds" were in Ardmore -- out of reach of Texas law enforcement officers who had been deployed to bring the legislators back to work.

Craddick spokesman Bob Richter said Friday that Craddick and DeLay spoke about the matter May 12, but that Craddick does not remember who initiated the call.

"He doesn't remember any details at all about that day," Richter said. Acting on a vote of House members present May 12, Craddick ordered the missing representatives arrested and returned to the Capitol, as allowed under House rules.

The fact that Craddick "doesn't remember any details at all about" the day which was probably the most consequential of his career in public life doesn't exactly inspire a lot of confidence.

Here, though, are the questions I think we need to have answered ...

I've looked and I don't think the press reports note the precise time of DeLay's contacts with FAA, DeLay's calls to Craddick, or the call Lieutenant Will Crais (who, remember, was working out of a command center in the conference room adjoining Craddick's office) placed to the Department of Homeland Security bringing them into the manhunt.

I think if we knew that timeline we'd be a big step closer to knowing whether DeLay's fingerprints are on the call to Homeland Security.

More tomorrow on why the press and the Dems are frightened of taking on Tom DeLay, why the press's relative inattention to this story is due to a blindness similar to that which made them slow to catch on to the Trent Lott story. Also, more on Sid Blumenthal's new book and the sound and fury directed against it.

It's amazing what it takes to start a feeding frenzy these days. But this may do it.

Yesterday, in testimony before the House Select Committee on Homeland Security, Tom Ridge again declined to release the full transcripts of the taped conversations between his agency (DHS) and the Texas Department of Public Safety (DPS) because the tapes were the subject of "potentially a criminal investigation."

Now, as I noted in yesterday's post, there are lots of reasons already detailed in published reports that tell you that folks at the DPS and likely some Texas state pols giving them direction are in some trouble (filing false reports, document destruction, etc.).

The big question has been whether the trail of the particular skullduggery over the tracking of planes (the subject of a "potentially" criminal inquiry) leads back to a certain office in Washington, DC. To date, Majority Leader Tom DeLay has insisted that he did no more than provide "constituent service" for State House Speaker Tom Craddick in passing on to the Justice Department his requests for federal agents to arrest the runaway Dems.

Now it turns out that the information the DPS used to contact the Department of Homeland Security came directly from DeLay's office. Let's go to the story in Friday's Houston Chronicle ...

U.S. House Majority Leader Tom DeLay admitted Thursday he provided Texas Speaker Tom Craddick with the same information that state police used to enlist a homeland security agency in the search for runaway Democratic legislators.

DeLay said his staff used public information at the Federal Aviation Administration to track former Texas Speaker Pete Laney's airplane.

Laney was among 55 Democrats who broke a House quorum on May 12 to kill a congressional redistricting bill sought by DeLay, R-Sugar Land. Craddick and DeLay wanted the errant legislators arrested and returned to the House to force a vote on the bill.

"I was told at the time that that plane was in the air coming from Ardmore, Oklahoma, back to Georgetown, Texas," DeLay said of the FAA's information, which he said was also available on the agency's Web site. "I relayed that information to Tom Craddick."

Texas Department of Public Safety officers working in Craddick's office had the same information when it contacted a federal air interdiction agency to seek its help in finding Laney's airplane. The federal agency has since said it was misled into believing Laney's airplane was missing and possibly had crashed.

Homeland Defense Secretary Tom Ridge, meanwhile, said Thursday his agency is investigating "potentially criminal" misuse of the federal air interdiction service by the DPS.

DeLay said he played no part in the DPS' decision to contact the federal air interdiction service. And Craddick denies knowing anything about how the DPS came to call the agency.

"I don't know who contacted who," Craddick said.

The chain of events and contacts connecting the Majority Leader to a criminal investigation is now drawing awfully tight. (Keep in mind: the entire redistricting map power grab was orchestrated from Washington by DeLay and it's increasingly apparent that much of the manhunt was too.) It'll be interesting to see whether this town's chief buzzmasters and propriety hounds start to take notice.

Here, as promised, is my piece in The Forward on the conference in Washington put on last Saturday by the Social Democrats, USA. These are the folks who might say, paraphrasing the famous line of the immortal Irving Howe, "Blair is the name of our dream." (That's a bit of an inside joke, which may require some explaining unless you're over sixty, have the last name Walzer, or just read a lot of really old back issues of Dissent. But I can certainly relate to the sentiment.) As I said yesterday: "These are, simply as I can put it, the neo-cons who never quite became neo-cons."

The central point of the event was the creation of a political movement that combined a progressive agenda at home with a tough, democratizing internationalism overseas. Or as their statement put it at one point ...

Support for the labor movement at home and for energetic American assistance to democracy abroad are today two points of practical focus for Social Democrats, USA. If this combination somehow seems unnatural, we would argue that it is the lens of our political culture that is clouded: the two actually fit naturally together.
I'm not sure what to say about the piece or the conference other than what is contained in the article. But I did thoroughly enjoy it -- or, perhaps better to say, it provoked my thinking in ways that have continued on since it ended.

One thing that struck me was the utter certainty of some of the panelists that to have disagreed with the Iraq war was something on the order of having blinked at Munich, taken a post in the Vichy government, or generally acted as an amoral wimp at a hundred other points over the last hundred years.

I'm thinking particularly here of Jeffrey Herf who said, among other things, that the German government's opposition to the Iraq war was a sign of "Germany's lack of complete understanding of armed anti-fascism."

He combined that with what I could not help but see as a tendentious, strained reading of Germany's role in international politics under the Schroeder government. He ended by arguing, as I understood him at least, that Germany had to come to grips with this misjudgment, this historical error, before it could get back on history's, and presumably our, good side. It was rather like what Paul Wolfowitz told the Turks a few weeks ago: say you're sorry.

Regular readers of this site will know I have very mixed feelings about Iraq and still find the arguments for having dealt with it militarily quite compelling. But this sort of Iraq war ideological triumphalism irks me on any number of levels. Most of all, I think this is so simply because it was such a very close call. To place Iraq into the category of Nazi Germany or Soviet Russia is a crude perversion or even cheapening of the past. That hubris strikes me as even more misbegotten given what's happened since the war ended. I don't think the fact that we have yet to find any WMD necessarily weakens the argument for the long-term threat the Iraqi regime posed. (I'll try to explain why in a later post.) But the increasingly likely possibility that the Iraqis had little or no offensive WMD capacity does serious damage to those who tried to present the situation as one of imminent danger. In any case, this struck me as one of the weakest parts of the event.

As I've said earlier, and would like to discuss at more length later, the French are one thing. But I think what happened in Germany in the lead-up to the war was a much more complicated and ambiguous development. Certainly, the country's domestic politics, and Schroeder's need for a defining issue in a very close election, played an important role. But the decision-making -- as nearly as I've been able to make it out -- was a far cry from the cartoonish, euro-weenie stereotyping that one sees in so much of the press coverage in the United States.

We in the United States sometimes think of the German Greens as some sort of wild New Leftish fringe party that the German Social Democrats use to put together a majority for their governing coalition. But this is far off the mark. For those who believe in progressive government at home and democratic internationalism abroad the German Greens are one of the most compelling and dynamic forces in Western political life today. I recently went to a dinner/discussion put on for a visit by Katrin Göring-Eckardt, leader of the Green caucus in the German Bundestag. Though she opposed the war, it was a more nuanced opposition than one might have expected. And there was a lot in her thinking that struck me as in line with the sort of democratizing internationalism that many of us have in mind to help create. (Göring-Eckardt is from the former East Germany, a fact, I thought, which must play an important role in her views of these issues.)

Just as I suspected -- and, to be honest, just as anyone with half a brain must have suspected -- the Texas Department of Public Safety's claim that federal regulations mandated its records destruction turns out to be laughably bogus.

As predicted, the law they're trying to hang this on is a rider that goes along with a certain kind of federal aid to state law enforcement. The regulation is intended to prevent law enforcement from compiling intelligence dossiers on people unless there is a "reasonable suspicion" that they are involved in criminal conduct.

The intent of such a regulation isn't hard to understand and seems quite well-reasoned. The federal government doesn't want to be subsidizing any state-level penny-ante J. Edgar Hoovers. But this, on it's face, seems altogether inapplicable to the current situation. And it's not just me saying so.

According to a late report in the Star-Telegram, a Stanford law professor agrees ...

Still, several legal scholars found trouble with the feds-made-us-do-it argument. William Gould, a law professor at Stanford University, said the code only applies to individuals engaging in criminal activity.

It says an agency shall "collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity ..."

In this case, the absconded Democrats did not break any laws, and they were not considered criminals, said Gould, who has expertise in both federal and state law.

"In order for the state laws to be overridden, there has to be relevance," Gould said. "I don't see that conflict here."

The very destruction of the records, says another law prof quoted in the Star-Telegram, may have been a violation of federal regulations that require the preservation of records. And the Austin American-Statesman adds that the same federal guidelines also require state law enforcement agencies to "make assurances that there will be no harassment or interference with any lawful political activities as part of the intelligence operation" -- a requirement which at least arguably might apply here.

More to the point is Texas state law, a point Gould makes oblique reference to in the passage quoted above.

The DPS seemed to be relying on a demonstrably inapplicable federal regulation to override a demonstrably applicable state law. Texas state law, according to an expert quoted in the Star-Telegram, mandates the retention at least of all correspondence related to an investigation for at least three years. And the DPS's destruction order specifically requires the destruction of "correspondence."

And there's one more thing. The very federal regulation the DPS says forced it to destroy the records of investigations of non-criminal conduct also explicitly forbids the investigation of non-criminal conduct.

Now, clearly, the ridiculousness is flying pretty fast and furious here. So let's take a moment to review. The DPS appears to have violated Texas state law by destroying the records. To justify this, they point to a federal regulation which a legal expert says is plainly inapplicable. And the very regulation they're trying to hang their hat on seems to bar the original conduct itself.

So how does the DPS argue it's way out of this? Well, you can't say they aren't creative. According to DPS spokesman Tom Vinger, it was a criminal investigation. So they were entitled to conduct it. But only for a while! When they discovered that the legislators were out of state and couldn't be arrested, then it stopped being a criminal investigation. As Vinger told the Austin American-Statesman, "That's when this (federal code) kicked in, because clearly we had records now that were of a noncriminal variety."

This stuff pretty much defies editorial humor since it's difficult to find an analogy more ridiculous and bamboozliferous than the actual argument they're making. Texas Governor Rick Perry disagrees. His spokesperson says he accepts the DPS's explanation.

However that may be, it's hard to see how the DPS -- and probably some politicians giving them orders -- haven't stepped in it pretty deep. Whether some of that stickiness reaches back to the puppeteers in DC is another matter.

So it turns out that the Texas Department of Public Safety -- the agency that tried to track down the runaway Dems on the order of Speaker Tom Craddick and even pulled in the Department of Homeland Security -- destroyed the records of the search because of their extreme civil liberties scrupulosity.

So says the DPS at least.

As the Fort Worth Star-Telegram reported yesterday, the day before the runaway Dems returned to Austin, a commander with the DPS sent out an email instructing troopers to destroy all documents and photographs connected with the search.

The explanation provided by the DPS is that this was required by federal civil liberties guidelines.

Or, as this new AP story puts it ...

The Texas public safety department said that it destroyed the records because federal regulations prohibit it from keeping intelligence information that is not part of a criminal case.
Now, I believe part of the issue here is that these were civil, not criminal, arrest warrants. The state constitution gives the Texas House Speaker the authority to have missing legislators arrested and forcibly brought to the chamber. But being absent isn't a crime, thus no criminal arrest warrants.

But let's set that aside for a moment. Does this regulation even exist? In each of the stories I've read this evening, the writer passes on that claim without any comment giving the reader a clue as to whether it has any validity.

Is there really a federal regulation stipulating that nothing that police agencies compile -- pictures, notes, phone logs, anything -- can be kept unless it pertains to a specific criminal investigation? I find it really hard to believe that such a sweeping regulation exists. Now, mind you, my question is not purely rhetorical. I have certainly asked such questions before, with great incredulity, only to find out that yes, believe it or not, the answer is 'yes.' It just doesn't sound true to me, though -- and I think the failure to mention any specific regulation and the, shall we say, diminishing credibility of the source makes me think so even more.

I can imagine that there may be rules against police departments setting up their own private intelligence agencies, and keeping dossiers on people who haven't committed crimes. But that seems like a far cry from what we're talking about here. This is just keeping some record of what took place. Is there usually such haste and punctiliousness about complying with this 'regulation'?

For the moment I'd say that what we have here is, at a minimum, an uncharacteristically rapid and total effort to safeguard the runaway Dems' civil liberties. But the first thing I'm curious to know is whether such a regulation -- applied in anything like the way we see here -- even exists. Or, is it something they just made up on the spot to explain what looks very much like an attempt to cover their tracks.

Tim Bergreen, head of the new group Democrats for National Security, and Donna Brazile have an Op-Ed today in the Wall Street Journal on the Dems' defense gap. What catches my eye, and heartens me, is Brazile's name on that byline. I saw her speak at last Saturday's Social Democrats, USA conference on a very similar theme. Explaining the political and intellectual lineage of this group (the SDUSA) would take too many hundreds of words. (These are, simply as I can put it, the neo-cons who never quite became neo-cons.) In any case, I have an article coming out on the conference in a couple days. And I'll post a link when it hits the newsstands. But suffice it to say for now that the essence of the endeavor was an attempt to build a democratic left that is progressive at home and muscular, internationalist and Wilsonian abroad. It was an exciting event.

More on all this soon.

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