Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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?

Here's a piece you just can't miss. It's equal parts hilarious and damning. The Ashcroft Justice Department has pushed the envelope just as far as it will stretch to hunt down terrorists in the United States. It's even taken several steps - like authorizing eavesdropping on attorney-client phone calls - which under normal circumstances no one would countenance.

But why be squeamish about fine points and legal niceties when we're at war? Unless of course it's some fictive right claimed by paranoid gun freaks. Then, in that case, let's not get carried away.

According to this article by Fox Butterfield in today's Times, the Justice Department "has refused to let the F.B.I. check its [Brady background check] records to determine whether any of the 1,200 people detained after the Sept. 11 attacks had bought guns."

I'm almost looking forward to knocking this one around for a few days. But this decision is so stupid and embarrassing that I find it hard to believe that they're not going to drop this idea like a hot potato by the end of the next news cycle.

Where's Richard Hofstadter when you need him?

In the fifth installment of his O'Neill Death Watch series, Tim Noah points out some information I hadn't heard yet, which really does seem to point toward the hapless O'Neill's possible departure. He flags a New York Post report that Cheney is already interviewing possible replacements.

Anyway, at Talking Points we try to take the longer view, look beyond the ephemera of the moment to the deep structure of rumor, and of course add a healthy dose of wishful thinking.

So maybe Mitch Daniels is having some rough sailing too!

This article from National Journal says Daniels' relationship with Republican appropriators on Capitol Hill has hit a low point. Senator Stevens (R-Alaska) told David Baumann that Daniels should "go back home to Indiana. I can't do anything about that relationship."

Of course, OMB Directors never make a lot of friends on the Hill, I'll grant you. But the subtext of the article seems to be that people on the Hill are coming to appreciate one of the points TPM frequently notes. That is, that Daniels is ... well, just a bit of an &#$@(*&.

Then there's this comment from Daniels' recent speech to the National Press Club:

MODERATOR: Do you have, sort of, a target figure on how large a deficit that would be acceptable to the administration?

DANIELS: Have not set a target figure. The president had said, throughout his campaign and long before these events were visible to us, that he hoped to always operate in the black and, in fact, at levels beyond the Social Security surplus, but that there were three conditions under which a deficit would be acceptable. Those being war, recession or emergency. And as he said to me, shortly after the 11th, "Lucky me, I hit the trifecta."

Is that funny? And did the president really say that?

As I first mentioned on September 13th, in cases like these I like to recur to the Clinton Rule (CR) ("If Bill Clinton were being attacked in such and such a way would I think it was fair?"). Needless to say, if Bill Clinton were ever caught uttering such words in this context, he'd be crucified for the basest cynicism. But applying the CR tells me in this case that all sorts of verbally and morally off-color things get said in private, in jest, and in the heat of the moment.

So you have to give folks the benefit of the doubt. But this stretches things a bit. And in any case, presumably that was the sort of 'shooting the *&$%' comment that was meant to stay private.

Daniels' repeating it, or perhaps originating it, tells you something about him. For Mitch Daniels it really does seem to be a matter of, 'Phew! Lucky this world crisis came along. Otherwise, I'd have a lot of spinning to do about these budget numbers...'

Eventually, this sort of attitude and those kind of comments will catch up with him. Can you say Su-nu-nu?

Don't miss this solid and much-needed piece by Jake Weisberg about the utter absence of an anti-war (in Afghanistan) movement in the United States, and the often pitiful efforts of various right-wingers and rage-oholics to construct one.

Oh, wait! You mean Noam Chomsky's not on board? Sorry, my bad. I take it all back.

Mickey Kaus raises exactly the right point (actually I was thinking just the same thing yesterday -- really! I promise! -- but he posted first and I tarried. So according to mezine Sharia, or at least according to several key hadiths, he gets the props, the shout-out, etc.) about yesterday's Washington Post article about a dirty bomb. "If," writes Mickey, "at a meeting with Bin Laden, one of Bin Laden's associates 'produced a canister that allegedly contained radioactive material' and 'waved it in the air,' just how radioactive could the material have been?' Good point!