Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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.

"Did Majority Leader Tom DeLay (R-Texas) try to get the Feds to hunt down the runaway Texas Democrats or not? It’s coming down to one man’s word against another’s. On one side you’ve got Tom DeLay, and on the other you’ve got … well, Tom DeLay."

That's the lede of my new column in The Hill which goes over some of Tom DeLay's, let's say, not altogether consistent statements about just how involved he may or may not have been in trying to get the Feds to arrest those Texas state legislators and haul them back to Austin to make a quorum call.

Yesterday Democrats in Washington were giving Tom Ridge a hard time for not agreeing to turn over the transcripts of the calls that the Texas Department of Public Safety made to the Department of Homeland Security to get them involved in the manhunt.

Now this morning, the Forth Worth Star-Telegram -- the paper that broke the original story of Homeland Security's involvement last week -- reports that "one day before Democrats ended their boycott of the Texas House last week, the Texas Department of Public Safety ordered the destruction of all records and photos gathered in the search for them."

Plenty of troops to win the war, not nearly enough to win the peace. That storyline has been gaining ground for some time now. Much more on this soon. But for now, see this new article in the Washington Monthly to get the full run-down.

Oh, Fred, Fred, Fred ... It starts with getting those calls returned from Dan Quayle's office and it leads to this.

Fred Barnes has a new piece out in the most recent Weekly Standard on the dust-up down in Texas. (I can't link because it's subscribers only.) He tells readers that Democrats have no legitimate complaint since: "There's a word for what Republicans want to do--gerrymandering. But of course that is quite normal. When Democrats controlled Texas, they regularly gerrymandered ..." The rest of Barnes' article is devoted to pushing the argument that Democrats -- shrieking in a wilderness of public disapprobation -- are devoted to "extreme measures that break sharply with the routine course of politics and governing ... order of the day."

Now there is one detail in this saga that Barnes somehow forgot to mention: mid-decade redistricting -- absent a voting rights lawsuit -- has been virtually unprecedented for the last century and entirely unprecedented since the mid-1950s, in Texas and every other state in the union. You might even call the bar on such gerrymanderly double-dipping part of the "routine course of politics and governing."

Fred, let's not give tendentiousness a bad name, okay?

Advisory sent out to GOP Party-Line-Agitprop-Central: California Republicans pulled the quorum walkout stunt back in 1994. This from today's Orange County Register ...

The Republicans sensed doom, and to block the Assembly from having a quorum to do business, they scurried across L Street to the Hyatt, and hunkered down. Reporters stalked the hotel corridors, looking for lawmakers.

"Is there a session? Gee, I hadn't heard. First chance I get, I'll check on it," then-Assemblyman Ross Johnson, R-Irvine, told The California Journal.

Brown also sent the Assembly's sergeants at arms to hunt down the Republicans, but they never found them.

After less then a day, the Republicans left town, leaving only Democrats when the Assembly convened on Dec. 8, 1994. The speakership was left unresolved until January.

Back to the drawing board.