Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

I just saw a preview of a study that finds the Swift Boat ads quite effective among independents in raising doubts about John Kerry's war record. And that suggests that Karl Rove will want to send more money toward the group running the ad.

This of course is only the beginning. The temperature will get much higher in the next couple months since, as Charlie Cook, aptly argues this week, President Bush is in the process of losing this election unless there's a major change in the dynamic of the race.

I've gotten quite a few responses to my discussion of the priorities and interests involved in whether journalists should be compelled to disclose confidential conversations with White House officials who may or may not have leaked the identity of CIA operative Valerie Plame. Most of them critical, some supportive.

I suspect that the journalists in question -- for the moment, Matt Cooper of Time -- will run through their appeals and lose. As a matter of law, as I wrote earlier, I think I agree with that, though I also support journalists' refusing to comply and accepting the consequences.

I expect to have more to say about the various issues involved in this case. But before we get tangled in debate over journalistic ethics here and see Matt Cooper become the only person to serve a day in jail over this, let's draw back and see the big picture.

President Bush could have settled this matter in a flash a long time ago and spared the country a destructive exploration of the limits of journalistic confidences before the law. He still could.

Scooter Libby, the vice president's chief of staff, has now freed at least two journalists from their obligation of confidentiality to him. Presumably, in at least those two cases, he has nothing to hide.

There must be others still relying on a confidence who do have something to hide.

President Bush could make it known either implicitly or explicitly that he wants to get to the bottom of this mystery and that anyone who is asked should free journalists in the way Libby has. If they don't feel they can do so -- which is certainly their right, working in the White House doesn't mean you lose your right to defend yourself -- they should take a leave of absence from their job or quit.

When I mentioned this possibility some time ago, many readers said this was wrong as it compromised the rights of possible targets of prosecution. But I don't think that's a problem here. Everyone has a right to defend themselves in a criminal probe. But there's no constitutional right to work at the White House.

Needless to say, I'm not holding my breath waiting for this to happen. But let's not lose sight of the president's passivity and indifference to this probe. He's dragging the country through this. And the reason, I think, is obvious. He doesn't want the probe to succeed.

I truly wonder sometimes about the New York Times. Judith Miller was not the only reporter to be bamboozled by Ahmed Chalabi. But her case was one of the most long-standing, thorough-going and troubling -- and it has never been fully or adequately addressed.

Today, Miller writes about the Volcker investigation into alleged corruption in the UN's oil-for-food program. And Chalabi, though not mentioned by name in the article, is at the center of that story.

The investigation, you'll remember, has several layers. Two key questions are a) whether the former regime skimmed money off the funds generated by the program (a given, and something that was known before the war) and b) whether the regime used oil-for-food funds to give bribes and kickbacks to various diplomats, politicians and international luminaries, including Benon Sevan, the head of the UN office that administered the program.

The second, far more inflammatory charge is the heart of the matter. Indeed, it is the accusation that got the whole series of investigations at the UN, on Capitol Hill and in Iraq under way. And that charge stems entirely from a series of documents discovered by members of Ahmed Chalabi's Iraqi National Congress.

We've noted earlier Chalabi's rather suspicious unwillingness to allow anyone who can even remotely be considered an independent observer to review these documents to determine their authenticity -- something which, given Chalabi's track record, is rather more than a matter of passing concern. And Miller's article reveals that Volcker still hasn't gotten to see them.

According to the Times, he has still "not yet received the original list of oil vouchers supposedly awarded to diplomats and United Nations officials, which was published by an Iraqi newspaper several months ago. Nor had he determined how his panel would vet such documents to see if they were forgeries."

Perhaps it's difficult at the moment for Chalabi to produce the documents and verify their authenticity given that he is apparently holed up in Tehran on the run from counterfeiting charges in Iraq. But then irony is no defense and he's had plenty of time already.

Miller repeats the charges against Sevan, as well as his denial. But she would have done better to note the highly dubious source of the original allegations.

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.