Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

I've had a number of readers write in today noting the news that two reporters were threatened with jail time by special prosecutor Patrick Fitzgerald for not revealing what they know about administration officials who may have leaked the name of Valerie Plame.

Most have wanted to know my reaction.

As this story in the Washington Post notes, "Newly released court orders show U.S. District Court Chief Judge Thomas F. Hogan two weeks ago ordered Matt Cooper of Time magazine and Tim Russert of NBC to appear before a grand jury and tell whether they knew that White House sources provided the identity of CIA officer Valerie Plame to the media."

Cooper refused and the judge ordered him sent to jail. He is now out on bond pending an appeal to a higher court. Russert apparently agreed to testify after jail was put on the table.

As you likely know, I've taken a great interest in this case -- both in the Wilson/Plame matter and the underlying issue of the discredited charges about uranium sales from Niger to Iraq.

I have to tell you that I have a lot more respect for Cooper's actions in this matter than Russert's.

I guess it would be possible to argue that given the potentially criminal nature of the leak, that that crime -- and the bad act behind it -- freed the reporter of the obligation to protect his source's confidentiality. I don't think I agree with that in this case. But I could see that argument being made.

Yet, if that were the principle at stake, I don't see why a jail threat should have been necessray to bring it into play. If that's how Russert felt, he could have talked to the grand jury from the beginning. But clearly he didn't.

It seems like he just didn't want to spend any time in jail, which is human, but not honorable.

Cooper, on the other hand, is putting himself on the line, taking a courageous stand in a situation that all journalists know they might one day find themselves but hope they never will.

I know many readers will likely see my position here as contradictory, a hyocrisy, given how much emphasis I have given to getting to the bottom of this matter. Perhaps some will suggest that my own work as a journalist makes me biased, that I'm letting that bias cloud my view of this case, or speaking out of a sort of professional tribal loyalty.

Perhaps they're right.

All I can say is that finding out who revealed Plame's name is not the only interest at stake here. Or, just as we do not knock down every right or procedural norm to get a conviction of a guilty party in a court trial, so too should we not do the same to get to the bottom of this mystery.

I think that the confidences of journalists play a role not unlike that of defense attorneys. They protect the interests of various bad actors. But they are an essential part of a system that, overall, produces good results.

Some time back in Slate, Mike Kinsley, in characteristic fashion, elegantly summarized this argument, only to suggest that it really may not apply here, or at least not in an absolute fashion ...

It is no solution to say, as some do, that it is journalist's job to protect the identity of his or her sources and it is the government's job to expose them. This isn't a game. There is no invisible hand to guarantee that the struggle of competing forces will achieve the correct balance. Journalists ought to be concerned about national security, and government officials ought to be concerned about the First Amendment. When these interests conflict, those involved ought to have an obligation to strike the balance for themselves. Or they should have it.

The purpose of protecting the identity of leakers is to encourage future leaks. Leaks to journalists, and the fear of leaks, can be an important restraint on misbehavior by powerful institutions and people. This serves the public interest. But there is no public interest in leaks that harm national security, or leaks that violate the law, or leaks intended to harm blameless individuals. There is no reason to want more of these kinds of leaks. So, there is no reason to protect the identity of such bad-faith leakers.

I'm not sure I have a good response to this argument, or at least not a crisp one.

The best I can do is to say that I'm not sure that the line between bad-faith and good-faith leaks is necessarily so clear as to make this argument work in practice. I guess I have some confidence that the correct balance between the competing forces Kinsley notes will sometimes have to be found in the tension between the judge's ability to impose jail time and the reporter's ability to endure it.

But I'll mull the matter more and see if my opinion changes.

Having said that, I also agree with the court ruling that says that the 1st Amendment does not grant an absolute shield for journalists seeking to avoid testifying before grand juries -- not just that that is the law but that it should be the law. And that means that journalists must in some cases be willing to go to jail to protect a source, even if the source isn't particularly deserving of protection.

Perhaps this seems like another contradiction. But I don't see it that way. I don't see any conflict between believing that the state has a right to demand answers from a journalist in certain highly restricted cases and also believing that the journalist may have an ethical right or obligation to deny that demand, so long as he or she is willing to accept the consequences. I simply don't see where journalists, as a group, can get off with an absolute protection against getting hauled before grand juries. They're too ramshackle and unregulated a bunch to get the protections the law provides to doctors and psychologists. And even those are not absolute.

This is just one of the perils of the profession, just as doctors arguably have an obligation to risk exposing themselves to certain contagious diseases in order to heal the sick.

Of course, all of this leaves rather a mystery about why Fitzgerald is picking on Cooper and Russert, while not putting the same screws to Robert Novak -- the man who clearly could give the most salient and probative testimony in this case and who, let's be frank, most deserves to be put in this position.

He, after all, is the one who actually chose to report the leak and become the hand-maiden of the bad act.

So many disputes about John Kerry's military service record that even the 'wingers can't sort them all out ...

Deborah Orin, 8/5/04, New York Post: "The book, by Vietnam vet John O'Neill who served with Kerry, adds: 'What [Kerry's] fellow Swiftees concluded was that Kerry had a very high regard for his own wellbeing and very little nerve for facing serious combat.'

Luiza Ch. Savage, 5/5/04, New York Sun: "Mr. O'Neill did not serve with Mr. Kerry, but took over his boat several months after Mr. Kerry left Vietnam."

If anyone thought that Alan Keyes was going to start marching around Illinois spouting clownish bombast and giving Barack Obama a chance to play the statesman in the face of the Illinois GOP's cynical nonsense, boy do they have another thing coming.

Today Keyes attacked Obama for taking the "slaveholder's position" by voting against a ban on late-term abortion which had no exception for protecting the life of the mother.

"I would still be picking cotton if the country's moral principles had not been shaped by the Declaration of Independence," Keyes said. Obama, he said, "has broken and rejected those principles -- he has taken the slaveholder's position."

When asked about the "slaveholder" comment, Obama told the AP that Keyes "should look to members of his own party to see if that's appropriate if he's going to use that kind of language."

Keyes picks God as running mate.

From AK's campaign announcement speech: "I will promise you a battle like this nation has never seen ... The battle is for us, but I have confidence because the victory is for God."

I think we may have a winner for the feeblest endorsement of Alan Keyes from a prominent Illinois Republican. In this vaguely Sovietological nod, Cong. Ray LaHood (R-IL) says, "If the party believes he's the best candidate for the race, then I'm with him."

With rather more gusto, Republican Jim Oberweis, who lost out to Jack Ryan in the GOP Senate primary called the Obama-Keyes race "a debate between good on the right and evil on the left" which I take it amounts to an endorsement.

Okay, this simply <$NoAd$>won't fly.

I haven't yet been able to get a handle on just what happened with the public release of the identity of this al Qaida operative who was apparently cooperating with Pakistani intelligence in some sort of sting operation. Nor do I yet have a clear sense of what I think about the larger issues.

But on Wolf Blitzer's show yesterday, Wolf had the following exchange with Condi Rice ...

BLITZER: Let's talk about some of the people who have been picked up, mostly in Pakistan, over the last few weeks. In mid-July, Muhammad Naeem Noor Khan. There is some suggestion that by releasing his identity here in the United States, you compromised a Pakistani intelligence sting operation, because he was effectively being used by the Pakistanis to try to find other al Qaeda operatives. Is that true?

RICE: Well, I don't know what might have been going on in Pakistan. I will say this, that we did not, of course, publicly disclose his name. One of them...

BLITZER: He was disclosed in Washington on background.

RICE: On background. And the problem is that when you're trying to strike a balance between giving enough information to the public so that they know that you're dealing with a specific, credible, different kind of threat than you've dealt with in the past, you're always weighing that against kind of operational considerations. We've tried to strike a balance. We think for the most part, we've struck a balance, but it's indeed a very difficult balance to strike.

Here Rice seems to be implying that things discussed 'on background' aren't for public release and thus that the White House did not in fact release his name.

But that's simply false. White House officials give 'backgrounders' all the time, Rice at least as often as others. The information discussed in those briefings is very much for public use. The restrictions are simply a matter of identifying who is talking.

Best endorsement of <$NoAd$> Alan Keyes so far.

This entry by Speaker of the House Dennis Hastert, as related by The New York Times ...

"I spent five weeks trying to find good people," said Mr. Hastert, who said he approached state legislators and the former Chicago Bears coach Mike Ditka and Gary Fencik, an Ivy Leaguer who was a hard-hitting safety.

"I got down into last week interviewing a 70-year-old guy who was a great farm broadcaster in Illinois," Mr. Hastert said. "He decided because of his health problems he couldn't do it. You know, we were down — we needed to find somebody to run, somebody who wanted to run. And, you know, Alan Keyes wants to run, and I hope he's a good candidate."

I will be much obliged if readers can send me examples of other similarly ringing endorsements or examples of Keyes' verbal nonsense from the campaign trail, though I concede the volume of the latter will likely be formidable.

Quite simply, I knew that Alan Keyes -- whom I recently called the master of grandiloquent nonsense -- would not let me down.

Keyes kicked off his campaign in what I guess we should be calling his new hometown of Chicago today. But first he had to get over the fact that a few years ago he not only knocked Hillary Clinton for relocating to New York to run for Senate -- after all most every Republican did that -- but had to dress it up in typically Keyesian mumbo-jumbo.

Harkening back to the wisdom of no one in particular, Keyes intoned, "I deeply resent the destruction of federalism represented by Hillary Clinton's willingness to go into a state she doesn't even live in and pretend to represent people there. So I certainly wouldn't imitate it."

The best walk back I heard for this one was the response from a Republican party official in Illinois a few days ago -- as related to me by a TPM reader -- who, when confronted with this seeming change of mind, shot back that ... you guessed it, 9/11 changed everything!

Clearly, something like that is far too banal for Keyes. So he described his flash of light on the road to Chicago experience like this ...

As Keyes told his new Illinois supporters today, he was at first dead-set against running for senate in another state. But then he was shown copies of Barack Obama's state legislative voting record and he decided he had no choice -- flip flop or no flip flop -- but to jump into the ring.

"I'll tell you by the time I got through the records, I was convinced that somebody had to run against Barack Obama," he said.

And then after this long dark night of the soul Keyes spent with Obama's voting records he decided that "I must leave the land of my forefathers [i.e., Maryland] in order to defend the land of my spirit, of my conscience and my heart -- and I believe that that land is Illinois."

Only Keyes could manage to bring a flourish to the rather prosaic work of backing out of backing out of a flat promise or turning a flip-flop into something vaguely reminiscent of St. Paul's decision to abandon the teachings of the Pharisees and launch off on foot around the shores of the Mediterranean preaching Christ crucified.

What I can't help but wonder is what issues get pulled into the mix when Keyes and his wife get in an argument about ... say, whose toothbrush is whose? Or when one of the kids won't take out the trash?

"You have said that you will not take out the trash, that you will take out the trash after you play Nintendo. But I tell you today that taking out the trash is no mere chore. Just as a righteous society is preserved by preserving what is good and just and tossing aside what is bad, just so with the ..."


Well, you get the idea.

In any case, I think Mike Murphy has the right take on this at The Weekly Standard when he argues that hiring Keyes for an election Kamikaze run is a foolish and self-destructive move for Illinois Republicans that shows just how bad a state they're really in.

As Murphy puts it, "Keyes will be the perfect foil for Obama to campaign against, and the selection of Keyes will seem exactly the shoddy and cynical move that it is. The Republicans should know better."

For years now I've been interested in one of Washington's lesser known and subtler forms of corruption -- one that is in no way illegal and one which can be found in both political parties. In the broadest possible sense it's the corruption of expertise; specifically, it's the corruption of think-tanks. Is it okay for think-tanks to get funding for their foreign policy or trade policy programs from foreign governments? Middle East policy paid for by the Saudis or the Israelis? Asia policy paid for by the Chinese? Should all of a think-tanks telecom policy scholars be funded by one cell provider?

There is one think-tank in DC, for instance, that has a region studies program which is paid for out of the foreign ministry of one of the countries in the region in question -- somewhat less than entirely independent, you might say.

I would say that it probably is okay so long as there's disclosure. These aren't black and white issues, after all. Think-tank presidents have to find funding for their scholars. And fundraisers quickly find that there isn't that much wholly disinterested money out there. Is it really so bad if such-and-such think-tank gets a grant for its program on peace-keeping from Germany or Japan?

Unfotunately, there are no disclosure rules for where think-tanks get their money. They don't have to tell the public anything. And in many cases corporate and foreign interests (and union interests too, though they have far less money) have used this loophole, if that's the best word for it, as a way to use money to affect the political process without having to disclose anything.

In any case, the person who interested me in this topic is Steve Clemons, whose new blog I introduced you to a few days ago.

Today Steve has follow-up post on a topic related to this issue: it is on Jim Woolsey and how Steve says Woolsey has personally profited from the Iraq War that he played a key role in leading the country into.

A follow-up to the earlier post about the arrest warrants sworn out against Ahmed Chalabi (for counterfeiting) and Salem Chalabi (for murder).

This article from a few days ago in the LA Times has more details on the circumstances of the murder in question and why the prosecutor was looking at the younger Chalabi as a potential suspect.

Another thing occurs to me though. As much as I think the elder Chalabi is a bad actor in this entire sorry tale -- and perhaps the younger one too, it's impossible to ignore that this new Iraqi government -- presiding over a slow-motion civil war, wracked by assassinations, headed up by a would-be strong-man -- inspires little confidence that its judicial actions are separate in any way from the rest of the hardball politics being played out in that country.

Of course, this creates an odd bind for the Chalabites who, to fish Chalabi's reputation out of this soup, must, of necessity, tag the new Iraqi government as a dictatorship in the making with no respect for the rule of law.