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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Here's a special item for TPM regulars. I'd say it was a treat. But that word wouldn't be appropriate. And I'm not certain quite what to call it. Maybe just something weird and worth seeing.

In any case, if you're enough of a pack-rat to have held on to the September 10th, 2001 issue of The New Yorker (that is, the second-to-last issue before the attacks) you can thumb back through those pages and find something that is equal parts bizarre, chilling, and weird. And, I think I can guarantee you, an ad-campaign that came to a screeching halt on September 11th.

So if you've still got a copy of that issue (the one with a black and white and yellow drawing of an over-sized child walking his parents) open it up and look at the Lufthansa ad opposite the table of contents.

Shouldn't Dick Cheney be catching a little more grief for refusing on Meet The Press to disavow the scurrilous Republican ad which likens Tom Daschle to Saddam Hussein? (Why are they on the same team, you ask? Because both oppose drilling in the Arctic National Wildlife Refuge, of course. Actually, I missed Saddam's announcement when he came out against. I must not have been paying attention.)

MR. RUSSERT: Let me show you an ad in South Dakota, and you mentioned Senator Tom Daschle, and this was paid for by the Family Research Council out there. Saddam Hussein and Tom Daschle juxtaposed. That's a little over the line, isn't it?

VICE PRES. CHENEY: Well, I'm not responsible for the ad, and you flashed it so fast I didn't have a chance to read the copy. But there is a disagreement with respect to Senator Daschle on energy. The House of Representatives has moved and passed an energy bill last summer. The Senate has not acted. Tom pulled it out of the Energy Committee, so they're not even considering in committee an energy bill at this point. The House has passed a stimulus package. The Senate has yet to act. The House just passed trade promotion authority. The Senate has yet to act. In the energy area, it's extraordinarily important that we move for energy security, energy independence. We're never going to get all the way over to energy independence, but given the volatility of the Middle East and our increasing dependence on that part of the world for oil, it's important we go forward, for example, with things like ANWR.

Dick "you flashed it so fast I didn't have a chance to read the copy" Cheney.

Can't we do a little better than that?

How embarrassing! Who thought the Bush Social Security Commission would have such a pitiful demise? The whole point of the Commission -- which, improbably enough, had libs jittery and wingers giddy -- was to send up a privatization proposal which would have the wind in its sails, define reform as privatization, and perhaps even arrest Pat Moynihan's precipitous slide into mendacity, hackdom and irrelevance.

Now the last of these three objectives was obviously a pipe dream. Number two was a tough proposition. But who would have thought they wouldn't even be able to manage number one? I mean, the whole cliche about presidential commissions is that their reports sit on library shelves collecting dust. Releasing not a report or a proposal but three different vague policy recommendations really charts new territory on the barren wasteland of commission fecklessness. No wonder privatizers in the media feel like they've been had.

The denouement is pitiful but the reality behind it is instructive. For years, privatization opponents have insisted that when it came down to brass tacks, there was no way to hash out a partial privatization plan that actually worked. That is, it was impossible if you defined 'working' as a) insuring long-term solvency for the program, b) not requiring massive benefit cuts, c) not requiring sizeable tax increases, and d) not being based on bogus accounting.

What happened is that when the Commission tried to do it they discovered that this was pretty much true.

This much could have, and should have, been predicted. What wasn't obvious was that the Commission would have all the political agility and polish of a drunk, blind mouse trying to find its way out of a paper bag (for a good run-down of the Commission's implosion see this article by Nick Confessore).

Millions of dollars were supposed to raised by the administration's allies for a privatization media blitz. But they forgot about it or lost interest. And now all the Republicans who actually have to run in elections are terrified that they're going to get creamed with the issue come 2002.

A group called Campaign for America's Future put together an operation which mau-maued the Commission from coast to coast, repeatedly harassing them and calling them out for how the Commission was stacked, how it tried to operate in closed meetings contrary to law, etc. etc. etc. The CAF folks were doing the Lord's work, as far as I'm concerned. But the hapless commissioners gave them a lot to work with, making one misstep after another, letting themselves get drawn into hopeless debates and generally being made fools of.

It's hard not to find examples. The just-released Draft Final Report (Adobe Acrobat Required) is plastered with warnings that say "Do Not Quote Without Permission." What exactly that is supposed to mean in a public document uploaded on a government website I'm not really sure. Isn't it the online, policy wonk equivalent of making a "Kick Me" poster, taping it to your butt, and taking a nice leisurely walk through Queens and the Bronx?

Here is a short review I just wrote for the New York Times Book Review. The review is of The Strange Death of American Liberalism by H.W. Brands. Brands' thesis is that the dominance of liberalism in America through the second and third quarters of the twentieth century was a product of the Cold War. No more Cold War, he argues, no more liberalism.

My take on the book is generally negative. But the flaws in Brands' argument should give pause to those liberals who believe that the muscular government response to 9/11, and the public's heightened reliance on government, necessarily portends some sort of liberal revival.

Nearly everyone has said it at this point. (Jake Weisberg makes the case eloquently.) But let me at least go on record: John Ashcroft's performance before the Senate Judiciary Committee yesterday was offensive, even disgusting. On attitude and lack of forthcoming-ness alone, it was bad. But to argue that those who raise questions about civil liberties are somehow aiding the terrorists is offensive and, frankly, requires an apology.

Even if you don't think the Justice Department has done anything wrong or over-stepped on any count, you should still be glad that some people are raising these questions.

Wartime and crisis often require steps that would be unwarranted and even unacceptable in peacetime. But there must some counter-balance to the government which, in the nature of things, will try to push the ball as far as it can.

So it's imperative that people should be raising these questions, issuing these criticisms - if only to put the state to its test, to make sure it can meet its burden of showing that the steps it's taking are both necessary and constitutional - two variables that become interwoven in moments like these.

Anti-war critics are always permissible, but I'm not sure they're always necessary. Civil liberties critics are always necessary. Even when they're wrong.

This is the problem with Ashcroft. Both in his penchant for secrecy and his intolerance of criticism, his flaws of character and untoward belligerence get him in trouble even when he's right on the merits.

Next, follow up response to Glenn Reynolds on whether John Ashcroft's hands were really tied, when he decided that the FBI couldn't look at Brady Bill instant background check records to investigate folks who'd been pulled in during the anti-terrorism dragnet.

Reynolds has now posted the relevant law on his site. And let me first say that this seems like weblogging, or mezining, at its best, given the civility of the debate and the production of relevant information it's given rise to. Having said that, the information put forward seems less than convincing to me.

Here's why.

First, Reynolds quotes 18 U.S.C. 922(t) which says that these records are supposed to be destroyed. He concludes that these records wouldn't even exist if the Justice Department had been following the law.

But if the Justice Department were really breaking the law, wouldn't someone have sued? Well, they did. Or more precisely, the NRA did. And they lost.

Last year the DC Circuit Court upheld the Justice Department's right to retain those records for six months, finding "nothing in the Brady Act that unambiguously prohibits temporary retention of information about lawful transactions, and finding that the Attorney General has reasonably interpreted the Act to permit retention of such information for audit purposes..."

The next statute Reynolds cites is 18 USC 926 ... (the italics and editing are Reynolds')

(a) The Secretary may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter. . . .

No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.

But when I read this, the key phrase is "may require." That's the phrase governing the maintenance of the records in the first clause and "any system of registration" in the second. This sounds like the law says that the executive branch can't issue a regulation requiring that these records be used as a national database or firearm registry.

That sounds different from saying that law enforcement can't look at records that are legally (by the DC Circuit's ruling) still hanging around.

In any case, as TPM readers know, I'm not a lawyer and Reynolds is a big time law professor. (No, that's meant seriously, not facetiously. If these were 17th or 18th legal records, I'd be the expert, but they're not -- long story, which I'll explain another time.) So these are just my unlearned takes on these statutes. But having looked at them, they still look way shy of black letter law to me. To put it mildly.

As one of my readers - who is a lawyer - put it "Ashcroft is pushing the envelope to expand the terror investigation in some areas, but is using one arguable (cramped) reading of a statute to limit law enforcement in the gun area."

Given all this, any potential correction on my part, for the moment, is still on ice.

Let's run down several issues in order, shall we? In this post, Andrew Sullivan and Paul Krugman.

Sullivan takes a whack at Krugman for today's column on Bush's disastrous fiscal policy. Sic Sullivan ...

“Money to rebuild New York? Sorry, no.” – from the column cited above. Now, everyone knows that a large sum of federal money has already been apportioned to New York City for recovery and rebuilding. So what can Krugman mean? Read the column again and you’ll see there’s no qualification here. He doesn’t say “More money to rebuild New York?” Or: “Enough money to rebuild New York?” Is Krugman unaware of the funding? Or is this simply a smear?
Now, strictly speaking, this may be hyperbole, since some money is being appropriated for New York City. But perhaps Sullivan hasn't been paying very close attention to what's taking shape on Capitol Hill.

After September 11th, President Bush pledged $20 billion in aid relief to New York. That's the "money apportioned". But over the last two months that money has been steadily whittled away. The New York delegation is now trying to secure roughly half that amount -- and even that 50% of what they were promised counts various non-applicable expenditures. (Bush says they'll get the rest -- next year.)

(It's actually an astonishing story - one that's gotten relatively little attention outside New York - and a stunning broken promise. But, hey, the Sunbelt is in the saddle. So what can you do?)

Anyway, $20 billion was what Bush himself thought was necessary to rebuild New York. He and Hill Republicans are now unwilling to spend that money. Why? Because of the budget squeeze created by the tax cut. Simple as that.

Maybe I'm in the clear on this Justice Department "gun-rights" brouhaha. I've heard from a number of lawyers who think Ashcroft et. al. are all wet on their interpretation of the law. But what caught my attention more is this piece in today's the Washington Post.

In most respects, the Post piece tells the same story as yesterday's Times piece. The author does seem to find more people to support the anti-Ashcroft line. But what's telling is that the administration itself seems to be hanging its hat on a regulatory order signed by Janet Reno -- an order which could obviously be overruled by an order by Ashcroft.

If there's really black letter law on this, why bother making the case with a regulation signed by Janet Reno?

Also, Ashcroft's Senate testimony on this particular point seemed a touch vague to me.

In any case, it's important to keep our eye on the ball. For this to be a 'story,' Ashcroft's call doesn't have to be baseless or even necessarily wrong. The point is that it was discretionary. And he's made every other discretionary call (beside the 'gun-rights' one) in the other direction - more often than not correctly, I think.

For the moment at least, I'm holding off on any correction. As the last few posts should show, I'm not above a retraction if one's in order. But if there's black letter law on this, I wanna see it.

Step right up! Get your John "Abdul Hamid" Walker scoop here! TPM world exclusive!

As you may have heard, the law firm of Morrison & Foerster LLP (the guys who beat out Snoop Doggy Dog and the owners of the 'Shaft' movie franchise for the domain mofo.com) has agreed to represent Walker, on behalf of his parents. And the decision is apparently ginning up no end of controversy within the firm, particularly, as you might expect, in the firm's New York Office.

The real issue for MoFo, though, is this: Who exactly is their new client going to turn out to be? For all the hoopla that's been kicked up over the case, even his lawyers (and I take it his family too) have no idea whether Walker is going to show up in the states with a 'where's my mommy, you don't know how bad it was' kind of attitude or whether it's going to be 'Viva Osama! Gimme a ticket on the next plane to Somalia!'

At a meeting of MoFo partners and associates on Wednesday, James J. Brosnahan, the firm's lead lawyer on the case, left the distinct impression that if it's the latter, John Walker could end up being the firm's ex-client really quick.

This late report from Newsweek will probably up the ante on Walker quite a bit. Newsweek has apparently obtained a videotape of CIA agent Johnny “Mike” Spann trying to interrogate Walker shortly before the prison uprising in which Spann was killed. Walker refused Spann's entreaties and would not speak.

Do I need to issue a correction for the last post? That's what a number of readers seem to think. And I've gotten a slew of sputtering emails demanding one.

The question boils down to this. Today's story in the Times says the law is ambiguous on whether Brady background check materials can be used to investigate whether illegal aliens picked up in the anti-terrorism dragnet had bought guns. Fox Butterfield, the author of the piece, argues that the Justice Department's decision to bar such use is, at the least, an instance of Ashcroft's pro-gun-rights bias, at the expense of the war on terrorism.

Glenn Reynolds (a right-leaning weblogger who, as a general matter, I strongly commend to TPM readers) disagrees and says it's basically black letter law. So the Justice Department's decision simply enforces existing law. And who can question that?

So who's right?

I'm not sure. The law I've been able to get my hands on seems ambiguous to me. (I'd actually welcome lawyers who've got an opinion on the legal question here to weigh in.) And the Times article says that (admittedly unnamed) FBI officials say that the Justice decision represents a change in existing policy - something which on the face of it would seem to make it a little less than a case of black letter law.

So it's possible I may have been wrong when I took the Ashcroft Justice Department to task for protecting "some fictive right claimed by paranoid gun freaks" since maybe it's written into the law.

Maybe the real scandal is that "paranoid gun freaks" have sufficient political muscle to get their "fictive rights" written into law?

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