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Corruption’s two faces

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When the Enron and Worldcom scandals unfolded in the early years of this decade, it became clear that we were looking at two different species of corruption: let’s call them old-school and New Wave. Old-school corruption is blunt and obvious; you’d know it for what it is if you bumped into it in a dark alley, which is probably where you’d find it. Large sums of cash are moved unceremoniously from place to place; ledgers are altered; bribes land in open palms.

Worldcom, clearly, was old-school — out-and-out, prima facie fraud. Enron was something equally insidious but entirely different in form: a kind of corruption that consisted largely of deliberate and elaborate bending of arcane rules, game-playing in largely incomprehensible gray areas of accounting rules and laws, and fabrication of sham institutions to give these activities bureaucratic shelter — all orchestrated with a ruthless goal in view, but all pursued under rationales that at least appeared plausible to the casual spectator.

As today’s political corruption scandals roll out in depressing sequence, it’s clear that they, too, divide along these old-school/New Wave lines. Here, the outline of the Duke Cunningham Congressional bribery scandal — which would make wonderful opera bouffe if it weren’t our money and security on the line — is pure old-school. Check out, for instance, this report from TPM’s Daily Muck with the latest from Cunningham’s prosecutors: The congressman had deals with a couple of defense contractors who were kicking back part of their 800-percent profit as bribes to him, and when the Pentagon was slow in paying them, he’d “browbeat” Defense officials to move their butts, and demand that they be fired if they failed to comply.

But Tom Delay, he’s plainly a New Wave sort of crook — the Andy Fastow of the Republican Party. He played in the nether reaches of election law and congressional process the way Enron’s execs and accountants danced beyond the margins of finance law and corporate governance rules. As dramas of naked political power-flexing, patronage-wielding and election-influencing, they are riveting; we could admire Delay’s sheer creative chutzpah if we weren’t still suffering from its consequences.

With old-school crooks, exposure is a straightforward matter of accumulating enough evidence to obtain a confession. New Wavers are tougher to nail, because they’ll always be able to argue that their aggressive interpretation of the letter of various rules and laws wasn’t technically illegal. So what if their actions involved phantom companies, slush-fund transfers, or unprecedented mid-decade redistricting? Do the laws and rules explicitly say this stuff is illegal? Can you prove it? All of it? What if they were just being creative and entrepreneurial? If you prosecute them, aren’t you just telling businesspeople and politicians to stop dreaming of new ways to do things?

When you hear that argument, pinch yourself if you start to succumb, and remember: it’s just an apologia for the same old corruption in a clever new guise.

A likely story

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As a young journalist fresh out of school, I decided to pursue criticism rather than reporting. I knew I’d chafe under the stricture of American journalism that forbade the expression of opinion. (Also, I knew I was temperamentally unsuited for shoving notebook or microphone under the noses of people who were recently bereaved, newly indicted or otherwise thrust into the spotlight.) If I became a reporter, I could wait 20 years and maybe, just maybe, if I worked hard and was good and got lucky, I’d earn a column, and, finally, be able to write what I thought, instead of having to seek out “experts” to say what I thought I already knew. Or I could become a critic — and start writing, immediately, not just about what I was observing but also about what I was thinking about it, which seemed more honest.

This is how it looked to me a quarter century ago, anyway. Since then I’ve ended up doing somewhat more reporting in addition to columns and criticism, and my respect for the insanely difficult work of reporting well has risen.

But also, the strictures have evolved. In the disintegration of journalistic norms taking place all around us today, it is increasingly common to find out-and-out opinions sitting right in the middle of ostensible “news” articles. I’m not talking about the kind of complaint you hear all the time from partisans of every stripe who dismiss facts that are inconvenient to their side by relabeling them as opinions. I’m talking about real opinions — statements that do not stand on their own as reported fact but hang in the void, unsupported by anything other than assertion.

These musings were occasioned by a piece in Sunday’s New York Times Business section by Louis Uchitelle. “Two Tiers, Slipping Into One” describes the decline of the bargaining power of Rust Belt unions. A union leader tells Uchitelle what he says to young workers who are getting a worse deal than their elders: “I assure them that five years down the road, when the present contract expires, we in the union are going to improve their lot in life.”

Uchitelle begins his next paragraph: “That does not seem likely.”

I am not questioning the accuracy of Uchitelle’s forecast, nor do I begrudge him his sarcasm. I am instead marveling at the forthright expression of an opinion. The union guy says one thing, and the reporter says, “Nope, sorry, not gonna happen.”

Uchitelle is a veteran labor and economics reporter. I have no reason to think he’s wrong. I’m just wondering — can we extend this practice a bit? If we’re saying it’s OK for reporters to point out that something a union leader says “does not seem likely,” maybe it would be OK for them to point out the same thing in other places and at other times, for other speakers?

Consider:

“We’re working with Congress to hold the line on spending,” Mr. Bush said Monday. “And we do have a plan to cut the deficit in half.”

That does not seem likely.

The insurgency in Iraq is “in the last throes,” Vice President Dick Cheney says.

That does not seem likely.

Secretary of Defense Donald Rumsfeld: “”There is no wiggle room in the president’s mind or my mind about torture.”

That does not seem likely.

Is this practice of writing truth to power going to spread across the pages of America’s dailies? That does not seem likely. But we can dream.

The buck(shot) stops where, again?

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I am not and almost certainly never will be a hunter, and I am in no position to judge the finer points of what happened on the quail-hunting expedition on which Vice President Cheney shot and wounded one of his hunting companions.

But the dance of denial, finger-pointing and cover-up that followed the hunting accident? That’s something anyone can see for the poor behavior it is — part of a pattern of secrecy and buck-passing that seems to be deeply etched in this administration’s DNA. Cheney and his retainers chose not to inform the press or the country in a timely manner. Then they decided that — in what even this city kid can see is a thoroughly unsportsmanlike fashion — the fault lay with the unfortunate victim, rather than with the veep with the wayward shot.

But I wouldn’t know a covey from a coven, so don’t take it from me — go read the Austin American-Statesman outdoors columnist, Mike Leggett, who writes,

 

Be a man. You shot a guy.

That would be my unsolicited advice for Vice President Dick Cheney.

You shot a guy. At least stay in town until he’s out of the hospital.

You shot a guy. Don’t blame the sun or the wind or the rotation of the Earth. And for goodness’ sake, don’t blame Harry Whittington.

Google, Slate and the reality of COPA

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With the news of its unwillingness to turn over large quantities of data to the federal government, the spotlight has been on Google all week: What exact information does the Department of Justice want, why is Google refusing to provide it, whose privacy might or might not be compromised?

These are certainly important questions. But the Google glare has obscured, in much of the coverage, the nature of the case that has caused this strange collateral damage — the proceeding that has been variously known through the years since its inception in 1998 as ACLU vs. Reno, ACLU vs. Ashcroft, and now ACLU vs. Gonzalez.

This case, a challenge to the constitutionality of the Child Online Protection Act (COPA), has dragged on for so many years that even people who once perceived it with great clarity have succumbed to varying degrees of fuzziness around it. We start with the misleading name of the original law, which leads many people (and many reporters) to assume, wrongly, that the law has something to do with stopping child pornography.

It is, in fact, a law that, according to its proponents, is intended to keep more garden-variety forms of Internet-based porn away from kids’ eyes. That’s not a goal I object to, either as a journalist or as the parent of young kids (they’re six now, though they weren’t even born when this case started). Unfortunately, COPA adopted both a much broader definition of the kind of content it aims to restrict and a harsh set of criminal remedies. The law says that if you publish material that is “harmful to minors” and you don’t use a credit-card verification check to make sure that everyone who accesses the material is a grownup, you’ll face extended imprisonment, hefty fines or both.

Which leaves publishers like Salon, along with other publishers who are plaintiffs in the ACLU suit, wondering exactly where the government would draw the line: which articles about sexual mores intended for adults? which pages of sex-ed information intended for teenagers? Who are we supposed to trust to draw the line between gross, “harmful to minors” porn and legitimate, First Amendment-protected expression — John Ashcroft and his ilk?

The government playbook in this matter is to say to publishers like Salon that are not commercial pornographers, “Hey, don’t worry, relax, you’re not the target here.” We’re supposed to trust the Bush Justice Department’s interpretation of the law and ignore what the law actually says. No wonder every court that has considered this matter to date has sided with the ACLU and against the government.

All of this explains why my hackles went up when I read Slate columnist Adam Penenberg, in an otherwise sensible column about the Google/Justice dispute, describe COPA as a law that “required that adult sites implement age-verification policies.” Any reader of that description of the law who doesn’t know more about it will think, “What’s the problem? Shouldn’t adult sites require age verification?”

The problem is, that’s not what the law says. Penenberg’s description plays right into the government’s spin; by describing COPA this way, he’s making it sound like a perfectly reasonable statute.

I emailed back and forth with Adam about this today, and as far as I can tell he believes he hasn’t written anything inaccurate. It’s true that COPA does “require adult sites to implement age-verification policies”; but that’s an incomplete description that fails to explain to readers why anyone would find the law problematic. Say there was a new law that aimed to reduce street crime by enforcing a universal national curfew; you could decribe it as a law that “required all convicts to stay indoors at night,” and technically you’d be right, but you wouldn’t be helping anyone understand why people would find the law objectionable.

I’m zeroing in on one sentence here because, really, it’s the crux of the issue at stake in the case. The press seems to have a very hard time providing a simple, accurate description of what COPA is. (The original Mercury News report on the Google dispute also garbled its attempt to summarize the law.) By describing COPA this way, Penenberg is simply assisting the government’s effort to deceive people into thinking that this extreme law is really nothing to get upset about. That, you know, upsets me.

COPA’s latest collateral damage — Google users’ privacy

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Salon — along with the ACLU and a diverse group of plaintiffs — has been in the thick of the fight against the misguided and, we believe, unconstitutional Child Online Protection Act since 1998. The argument went all the way to the Supreme Court in 2004. Having lost the five-year-long preliminary round, the Bush Administration is taking the matter to full trial. And guess who’s getting dragged into the argument? Google, and all its users for an entire week — among whom, most likely, are you and me.

The Mercury News reports today on this strange turn of events. It appears that the Bush Justice Department believes that, somehow, a gigantic, indiscriminate data dump of a week’s worth of search engine activity logs will help it demonstrate that the 1998 law is not a censorship measure at all but rather an effective measure limiting minors’ access to online porn.

It’s a peculiar idea, given the vast volume of Net smut that originates outside of U.S. jurisdiction, the reasonable effectiveness of search engines’ own decency filters and the likely use of the law by prosecutors to go after uppity publishers. But it’s of a piece with the rest of the new Imperial Presidency’s tactics: When in doubt, seize as much private citizens’ information as you can and see what kind of a case you can patch together!

Just as we are supposed to let the Bush Administration decide in secret when and how to break the wiretap laws, we are supposed to trust it to use discretion in applying this broadly-worded statute — which punishes all publishers of material considered “harmful to minors” with fines of up to $50,000 and imprisonment of up to six months for each day of publishing such material, unless the publisher puts it behind a wall of credit-card verification.

Relax, says the administration lawyers — we’ll only go after the real bad guys. If you’re a legitimate publisher, you’ll be okay. Why am I not reassured? I’d be wary of any government receiving that power; this particular administration long ago squandered any trust it might have possessed.

Note the error in the Mercury copy, which reads, “The law was meant to punish online pornography sites that make their content inaccessible to minors.” I assume the paper meant, “accessible.” Actually, who knows what the law was meant to do? All that’s certain is that, if it is ever enforced, it will give the government a potent new weapon to use against any online publisher it doesn’t like, if said publisher dares to post non-PG-rated material.

Off the petroleum reserve

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It seems there’s an extra dose of right-wing perspectives and conservative punditry on the New York Times op-ed page these days.
Yesterday it was a Heritage Foundation fellow lecturing the Democrats on proper and improper ways to mix religion and politics; today it was conservative legal scholar Charles Fried going to bat for Samuel Alito. But the capper, also today, was a strange essay by a pair of Cato Institute fellows arguing that the U.S. strategic petroleum reserve should be liquidated.

Now, this is something that Big Oil has always dreamed of. From a strict free-market economics perspective, there’s even something to be said for it. The reserve certainly holds the potential for distorting the oil market, and if you live in a dream-world in which that market exists outside of the international political system, with all its unpredictable non-economic dynamics, then you will find this a laudable goal. Certainly, in an ideal world — one in which, say, we had a government that understood how important it was to move us away from an oil economy — who’d want the public sector to waste its resources stockpiling oil?

But the piece, by Cato’s Jerry Taylor and Peter Van Doren, is full of fallacies. It seems that, on the one hand, the reserve is so insignificant in size that it can’t really help the nation in a pinch; yet, on the other hand, the reserve is so vast that it distorts the fundamental economics of the oil industry.

If we just do away with the government reserve, they tell us, private industry will do the job for us. “Economists agree that every barrel of oil we put in the public reserve displaces oil that might otherwise have gone into private inventories,” they tell us, then add: “How much displacement occurs is unclear, but there is little doubt that it’s significant.” But wait, they just said that unnamed “economists” agree that every barrel of oil in the public reserve displaces private inventory. That’s not “unclear” at all. Are they even reading their own words?

What the Cato guys completely miss is the first word in the reserve’s name: strategic. The reserve was created in 1975, and anyone who was of news-consuming age then (as I was, and as I must assume these “senior fellows” were as well) will know why. The reserve was created to help the U.S. avoid being blackmailed by foreign oil suppliers. It should have been accompanied by long-term conservation programs and other measures. But its primary rationale was national security, not good economics.

In the wake of 9/11 you’d think such concerns would be at the forefront of conservative thinkers’ arguments. But corporate free-marketry trumps national defense every time when the likes of Cato and Olin are paying your rent. So Taylor and Van Doren tell us (a) oil embargoes can’t hurt us any more because the market’s so globalized; (b) a real catastrophe, like al-Qaida taking over Saudi Arabia, might be “worrisome,” but the reserve wouldn’t be big enough to help us in such a case (this is really an argument for a bigger reserve, but never mind!); (c) we really shouldn’t worry because even anti-American regimes wouldn’t be stupid enough to bankrupt themselves by refusing to sell their oil.

These writers evidently believe that they have explained all possible futures, and yet every one of their scenarios imagines rational economic actors in every role. Before 9/11, you could write that off as amusing folly; today it constitutes tragic stupidity.

There must be an argument going through someone’s head at the Times that goes like this: Their newspaper is under assault from the right, most recently because of its exposure of the Bush administration’s illegal-wiretap power grab; so it must achieve the impression of “balance” by presenting these op-ed voices from the right. But really, to balance the Cato people you’d have to find some wild-eyed leftist arguing that, say, all oil companies should be nationalized tomorrow.

The greatest achievement of the right over the past decade — oh, setting aside the seizure of “all three branches of government” in the wake of a disputed election, the plundering of the Treasury, and the derailing of the war on al-Qaida — is this: By a wide swath of American opinion-makers, “balance” is understood to mean that the usual welter of mainstream American voices needs to be weighed down by a gang of beady-eyed ideologues on right-wing think-tank payrolls who can barely construct a sensible argument.

Random links (yearend clearance dept.)

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## The Dynamic of a Bush Scandal: Peter Daou’s cynical but depressingly accurate precis of how the Bush administration and its allies shrug off and spin away scandal after scandal. Peter predicts the current cycle of outrage over the government’s flagrantly illegal domestic spying will pass like each previous cycle. He might well be right.

## David Edelstein says Munich is the best film of the year: “Today, saying our enemy is ‘evil’ is like saying a preventable tragedy is ‘God’s will’: It’s a way of letting ourselves off the hook for crimes committed in our name. Not incidentally, it’s also a way for our enemies to let themselves off the hook.” Guess I’ll have to see it now!

## Doc Searls continues to advance the conversation on the “unbundling” of media (my small contribution, on the unbundling of the newspaper, was here):

  What will happen, I wondered, when Toyota does the math, realizes how inefficient local TV advertising is, and drops its dealer advertising co-op program? Is this not inevitable? Why don’t we have better ways for sellers and buyers to inform each other? Terry puts the onus on advertisers, who are on the supply side; but why not equip demand to notify markets about what it desires? Why should I not be able to publish, selectively, and in a private yet usefully exposed way, that I would like to rent a 4+ bedroom house on Younameit Beach for the last week in April? Why should I have to go hunting among sellers for the same thing, ignoring all the promotional crap that goes with the seller-controlled nonconversation we call marketing?

## Salon readers know Laura Miller as a co-founder of the site, our one-time books editor and longtime book critic, who has shone a bright and steady light in all her work. Years ago she recommended Philip Pullman’s magnificent “His Dark Materials” trilogy to my wife and me, and they were the only books I can remember being able to finish — indeed, being compelled to finish — in the months of harrowing sleep deprivation I experienced during my twin sons’ infancy. Now Laura has written a beautiful profile of Pullman for the New Yorker, “Far From Narnia” — which his work truly is, in the best possible way.

Meanwhile, The Guardian also has an interesting profile of Ursula Le Guin, another great fantasist of our time.

Nullification, 21st-century style

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In order to understand the nature of the strange constitutional crisis President Bush has dragged the country into through his bizarre extralegal domestic surveillance program, you have to dig into the vaults of your brain’s American history storehouse and drag out the word “nullification.” The doctrine of nullification, a legal concept that enjoyed a brief moment in the sun in the antebellum South, held that individual states had the power to disregard, or “nullify,” federal laws that they didn’t like. It led to various crises during the presidency of Andrew Jackson, and the conflicts between Washington and the Southern states did not get fully resolved until the Civil War settled them once and for all, establishing the force of the federal writ through the force of the federal arms.

Today, the Bush administration has been steered into dangerous waters by veterans of the Nixon/Ford era, like Dick Cheney and Donald Rumsfeld, who have pursued a decades-long quest to reassert the glories of the imperial presidency they cherished as young men and then saw shamed and dismantled in the aftermath of Watergate. Most Americans at the time concluded from that scandal of executive privilege that absolute power corrupts absolutely; Cheney and Rumsfeld believed instead that Watergate had crippled and emasculated the presidency. 9/11 gave them an opportunity to bring back the good old days of enemies’ lists, intelligence-doctoring and (now we know) domestic surveillance — and even to extend the tradition of the imperial presidency into hitherto unexplored regions of White House-sanctioned torture, indefinite imprisonment without trial, and war without end.

And so we find ourselves entering a period of conflict with peculiar overtones of that “nullification” period. Only now it’s not the states attempting to usurp the federal authority; in the Bush version of nullification, it’s the Executive Branch that has begun to claim for itself the arbitrary and absolute right to disregard the explicit will of the legislature — not through the exercise of constitutional veto but through secrecy, legal chicanery and sheer chutzpah.

In claiming that the president’s basic role as wartime leader and commander-in-chief gives him the broad authority to disregard any law that he (and he alone) decides is impeding his goal of protecting the nation, the Bush administration’s lawyers are granting the occupant of the Oval Office a unique authority to step outside of the constitutional process by which laws are passed by Congress and signed (or vetoed) by presidents and reviewed by Supreme Court justices. Forget checks and balances, we’re being told; in the age of terrorism, they no longer obtain.

Let’s understand the chronology here: throughout the 1950s and ’60s and well into Watergate, federal agencies spied on a vast population of American citizens — civil rights leaders, anti-war protesters, journalists who ran afoul of J. Edgar Hoover or the president, people who looked the wrong way at someone in position of authority. A handful of the thousands under surveillance might even have been real threats to the Republic. But there’s no evidence I know of that any actual threat was ever foiled by the mass wiretaps.

In reaction to revelations of these programs, and out of disgust at the wholesale violations of basic constitutional rights, Congress passed a whole slew of laws intending to make sure that such abuses never happened again. One important part of this legislation was the
Foreign Intelligence Surveillance Act of 1978. It is the main law in question in the current controversy, the one that the Bush spying program violated. FISA laid the groundwork for an orderly review process by which U.S. intelligence services could obtain permission to conduct wiretaps and otherwise spy on people it had reason to suspect were engaged in terrorism. FISA was amended through the years and extended by the USA Patriot Act in the days after 9/11.

The Bush administration says it has needed to ignore FISA’s requirements of judicial oversight because, in the war on terror, it needs to act fast, and the judicial bureaucracy is too slow. Only today FISA already allows U.S. authorities to go ahead and spy on anyone they want to and then retroactively go back and tell the oversight court. So that’s just a smokescreen; something else is going on here. Experts are speculating now that the Bush administration chose its constitutional end-run in order to open the way for some new technological approach to domestic spying — some sort of data-mining approach that involves casting a wide net through vast quantities of domestic communication in search of terrorist missives.

That’s entirely credible. And I’m even willing to accept the Bush team’s argument that such techniques might be a good way of foiling the next terrorist plot. But none of this excuses or justifies what appears to be a three-year-old spying program of huge proportions and gross illegality. If the president wanted the authority for such a program, all he had to do was ask for it — and in the post-9/11 atmosphere, when all sorts of dubious civil liberties compromises were being rolled into the Patriot Act, he’d surely have gotten it. Alternately, he could have turned to the FISA court itself, which has a long record of approving thousands of government surveillance requests and turning down a mere handful.

But our executives were unwilling to request authority from the Republican-controlled congress or to obtain it from the judiciary. Why? Because they don’t believe they have to ask. Doing it without asking is the very point of the exercise. Aggrandizing presidential authority is not a means toward the end of better protecting the nation; the threat to the nation is simply a convenient occasion to establish the principle that being president means never having to ask for authority.

If Bush and Cheney had been willing to pursue their surveillance plan within the constitutional system they’re sworn to uphold, they wouldn’t be facing the uproar and consternation that they confront today. They wouldn’t be in the position of distracting the capital and the nation from the real crises and threats we face by provoking an unnecessary and fruitless showdown between the branches of government. But as with Iraq, so with the surveillance scandal: When faced with a choice between effective pragmatism and grandstanding brinkmanship, the Bush team has always chosen the riskier path.

POSTSCRIPT: Brad DeLong asks why Bush and Cheney wouldn’t worry that their Doctrine of Presidential Infallibility, if allowed to stand, wouldn’t hand the same absolute power to some “future left-wing president.” “There are two possible answers: (a) They are really stupid. (b) They are really evil–they do not intend for there to be a left-wing president ever again. I vote for (a) myself. I wish I could suppress the still small voices in my head that are whispering (b).
I hate the way this administration has turned me into a nutbar conspiracy theorist.”

POST-POSTSCRIPT: David Cole dips into another era of American history, President Truman’s Korean-War era effort to nationalize steel plants, and finds clear Supreme Court precedent showing just how illegal the Bush program of warrantless domestic wiretapping really is. Expect to be reading more in coming weeks about Youngstown Sheet & Tube Co. v. Sawyer.