Better Middle Than Late

I’ve been reading and listening to comments on nominee Sam Alito, including mention of the Planned Parenthood v. Farmer decision mentioned below. And I’ve noticed that rightie commenters and most “journalists” persistently make a mistake when they talk about this decision. That mistake is to say that the case in question was about a ban on late-term abortion. It was not. It most definitely was not.

The law in question banned “partial-birth” abortion. Anti-privacy forces confuse the issue by insisting that “partial birth” and “late term” mean the same thing. To me “late-term” implies that the pregnancy is almost full term. But the procedure that righties call “partial birth”–intact dilation and extraction (D&X) and dilation and evacuation (D&E)–are procedures performed mostly (if not entirely) in the second trimester, which reasonably would be considered MID term.

According to the written decision, 80 to 90 percent of abortions performed after the first trimester are D&E abortions. These are commonly done between 13 and 20 weeks’ gestation. The D&X is a less common variation of the D&E that involves collapsing the skull and removing the fetal body intact, as opposed to retrieving it in several pieces via a D&E. The D&X variation reduces the risk of cervical laceration and also provides an intact body, which might be required for diagnostic purposes.

These are not the only procedures available for second-trimester abortion. After 16 weeks’ gestation, the most common procedure used is induction, which involves injecting a lethal substance into the uturus and then inducing labor. The fetus might also be removed by hysterotomy, which is like a C-section, and sometimes by hysterectomy–removal of the uturus.

For reference: The second trimester is from weeks 13 to 26. The third trimester is weeks 27 to 42. A fetus is potentially viable only after the 23rd week, and that’s iffy. Babies born after at least 27 weeks’ gestation usually survive. According to the Alan Guttmacher Institute, only 1.4 percent of abortions in the U.S. are performed after 21 weeks’ gestation. I haven’t been able to find reliable data on third trimester abortions.

Anyway, now that we’ve got the “late-term abortion” nonsense out of the way– like other such laws, the act nullified in Planned Parenthood v. Farmer did not use medical terms, but instead used the term “partial birth abortion,” and defined that term in such a way that physicians testified they couldn’t tell exactly what was being banned. Further, the act appeared to ban abortion procedures on a “living” fetus, meaning a fetus with a discernible heartbeat, which could be as early as seven weeks’ gestation. Not exactly “late-term.”

And, if in fact the law banned only D&E and D&X procedures, it didn’t ban abortions at all, because other procedures are available. The righties never seem to notice that. It’s also beyond belief that righties can’t manage to write a law banning D&E or D&X procedures that might get approved by a court. I believe all they’d have to do is use actual medical terms and definitions and provide a “life or health of the mother” exception. But state legislatures keep passing essentially the same muddled, sloppily worded mess, and courts keep slapping it down. Makes me wonder if they actually don’t want it to become law; they just like putting on a show for the voters.

Regarding Judge Alito’s decision, provided in the last post, he was being clear that he felt it was his duty as a LOWER court judge to find according to existing case law. However, the law in question was a bare-assed attempt to sneak a total abortion ban on the books by means of bad phraseology. Any judge going along with the gag and approving legislation-by-deceit would seem pretty “activist” to me.

Also: From The Mahablog archives–why a “right to privacy” IS in the Constitution.

: Hunter gently explains why he disagrees with a particular conservative talking point. Billmon discusses Alita’s Casey dissent. Digby looks at the “strategy” behind abandoning Roe v. Wade. Fafblog does Hallowe’en. And the Rude One is, well, rude.

Pass This Along to the Righties

Figure this one out: In July 2000 SCOTUS nominee Samuel Alito, sitting on the U.S. Court of Appeals for the Third Circuit, voted that a law banning “partial birth” abortion was unconstitutional.

This doesn’t mean I trust him not to mess with Roe v. Wade, but please pass this along to the righties. Let it mess with their heads.

The case was Planned Parenthood of Central New Jersey v. Farmer. I just found this and I need to read it through to understand exactly what the problems were with this law, but here is Alito’s concurrence with the decision (note the phrase, “our responsibility as a lower court):

ALITO, Circuit Judge, concurring in the judgment.

I do not join Judge Barry’s opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. I write briefly to explain why Carhart requires us to affirm the decision of the District Court in this case. This is an appeal by the New Jersey State Legislature from a decision of the United States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997, 2A:65A-5 et seq., unconstitutional and permanently enjoining enforcement of the Act. Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2nd 478 (D.N.J. 1998). The New Jersey statute closely resembles statutes enacted in recent years in many other states.

On January 14, 2000, the Supreme Court granted certiorari to review the decision in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), cert. granted, 120 S.Ct. 865 (2000), which presented the question of the constitutionality of a similar Nebraska statute. The Supreme Court recently held that the Nebraska statute is unconstitutional. Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000).

The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 2000 WL 825889, *9-*14. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman’s ability to choose the method most commonly used for second trimester abortions, the “dilation and evacuation” (D & E) method. See 2000 WL 825889, *14-*18.

Under Carhart, the decision of the District Court must be affirmed. First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey state is irreconcilable with Part II-A of Carhart.

Second, the Supreme Court’s holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion, the Court held that the Nebraska statute applied, not only to the “dilation and extraction” or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New Jersey statute. Thus, the Supreme Court’s holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.

In light of this interpretation of the New Jersey statute, the Legislature’s argument that the plaintiffs lack standing must fail. As noted above, the New Jersey statute must be interpreted, in light of Carhart, as applying to the D & E procedure, and the plaintiff physicians in this case perform that form of abortion. The Legislature’s argument that this case is not ripe because the New Jersey statute has not been authoritatively interpreted by the state courts or state enforcement officials must also fail. In view of the interpretation in Carhart, there is no reason to wait for interpretation by state officials or judges.

In a post-Carhart filing, the New Jersey Legislature has urged us to certify questions concerning the interpretation of the New Jersey statute to the state supreme court. In Carhart, however, the Supreme Court of the United States turned down a similar request for certification by the Attorney General of Nebraska. 2000 WL 825889, *18. The decision of the Supreme Court of the United States to deny certification in Carhart must be regarded as controlling here, both with respect to the Legislature’s request for certification and with respect to its closely related argument that the District Court erred in refusing to abstain pursuant to Railroad Commission v. Pullman Co. , 312 U.S. 496 (1941).

In conclusion, Carhart compels affirmance of the decision of the Distric Court.

I will comment further once I’ve had a chance to digest this.

Alito? Boo!

I’m sorry about the page display problem. The site looks fine in Firefox, but is scrambled up in Internet Explorer. I’ll try to get it fixed today. If you can’t wait, though, download Firefox (free).

Anyway–Reuters is reporting that Bush is going to nominate U.S. federal appeals court judge Samuel Alito to replace Sandra Day O’Connor on the Supreme Court. RedState is thrilled. Therefore, be very afraid.

Here’s the scoop from

In ACLU v. Schundler, Alito wrote the majority opinion holding that a city’s holiday display that included a créche and a menorah did not violate the establishment clause of the First Amendment because it also included secular symbols such as Frosty the Snowman and a banner promoting racial diversity.

On abortion, Alito was the lone dissenter in Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.

Alito argued that the Pennsylvania law’s restrictions should have been upheld, saying “the Pennsylvania Legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.”

In other words, husbands can veto a woman’s decision to terminate a pregnancy. We’re just cows, after all.

The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. But late Chief Justice William Rehnquist, in his dissent, quoted Alito’s underlying dissent and said he agreed with his reasoning.

Other Alito rulings have made it easier for employers to practice race and sex discriminate. What a guy. No wonder the Right loves him.

Think Progress has more.

Update: It’s official — Alito is the choice. We could have a fight on our hands, says CNN:

Senate Minority Leader Harry Reid — a Nevada Democrat who had recommended Miers — said Sunday he feared Bush would “try to placate the right wing” with his next nominee, “and that’s a mistake.”

“If he wants to divert attention … he can send us someone who’s going to cause a lot of problems,” Reid told CNN, saying the “radical right wing” was “pushing all his buttons, and he may just go along.”

Reid said the choice of Alito “would create a lot of problems.”

“That is not one of the names that I’ve suggested to the president,” he said. “In fact, I’ve done the opposite.”

At least, if the Dems put up a fight, righties can no longer argue that the president’s nominee automatically deserves a vote in the Senate. Harriet Miers never got one.

SCOTUS, version 2.5

The Washington Post says Bush is “poised” to make another Supreme Court nomination tomorrow. Peter Baker writes,

Judging by the names the White House floated by political allies in recent days, Bush seems ready to pick a candidate with a long track record of conservative jurisprudence — one who would mollify the Republican base, whose opposition to Miers’s nomination helped scuttle her chances. Several GOP strategists said the most likely choice seemed to be federal appeals judge Samuel A. Alito Jr., with judges J. Michael Luttig and Alice M. Batchelder also in the running.

Any of the three would draw support from many conservative activists, lawyers and columnists who vigorously attacked Miers as an underqualified presidential crony. At the same time, the three have years of court rulings that liberals could use against them. Senate Minority Leader Harry M. Reid (D-Nev.) said yesterday that he has already warned the White House that nominating Alito — who is often compared to Justice Antonin Scalia — would “create a lot of problems.”

Concerned Harpies Women for America have let it be known they really like Alito and Luttig. Frightening.

Home Alone II

Nancy Gibbs and Mike Allen write in Time that George Bush has become estranged from his closest advisers:

“The problem is that the President doesn’t want to make changes,” says a White House adviser who is not looking for a West Wing job, “but he’s lost some of his confidence in the three people he listens to the most.” Those three are his Vice President, Dick Cheney, whose top aide, I. Lewis (Scooter) Libby, has been charged with brazenly obstructing the investigation into who leaked the name of CIA officer Valerie Plame; Bush senior adviser Karl Rove, who while not indicted has still emerged as a player in the scandal; and chief of staff Andrew Card, who gets some of the blame for bungling the response to Hurricane Katrina and even more for the botched Supreme Court nomination of Harriet Miers. “All relationships with the President, except for his relationship with Laura, have been damaged recently,” the White House adviser says. The closest aide who is undamaged is Secretary of State Condoleezza Rice–who is off minding the rest of the world–and, of course, Bush himself. “The funny thing is everybody’s failing now, in which case perhaps it’s time to look at George Bush’s relationship with George Bush.”

According to Gibbs and Allen, some White House aides hope that this week’s crises have persuaded Bush that everything is not fine and that he must make changes, both in policy and in personnel. The plan is to re-launch brand Bush in January, repackaged with a new style, new policy ideas, and new members of the team.

That sounds grand, but the product will still be the same guy who won’t read newspapers and who abuses staff members who bring him bad news. And the old team primarily was expert at surrounding Bush with a perpetual, carefully crafted pageant that made him seem presidential even as he avoided doing the job of president. I believe that “Team Bush” is less a staff than a tightly knit web of codependence. Without his enablers, can Bush still be Bush? If not, just who or what will he be?

And even if Karl Rove escapes further legal problems and regains some of his old standing in the White House, there’s still the messy matter of Scooter Libby and his eventual trial. Last week some were speculating that Bush would issue pardons, but now it appears Scooter Libby will be excommunicated from BushWorld. John Dickerson wrote in Slate,

Scooter who? You may remember how George Bush’s friendship with Enron chairman Ken Lay evaporated when the energy company came under investigation. That looks likely to happen with Scooter Libby. Libby has resigned. Vice President Cheney has vouched for his patriotism and talents. And now the White House will attempt to change the subject.

The problem is that the Plame-Libby story is going to be stirred up again, and again, by the eventual trial. Also, Dickerson points out, the Bush base will likely want to rally around Libby, not shun him.

But as Bush plays down the scandal, he may be undermined by the kind of conservatives who recently pulled down Harriet Miers, and who may try to lead a more assertive political response. Karl Rove would prefer they stay quiet. He’d like it to become accepted wisdom that since Fitzgerald didn’t indict him today, he’s in the clear. Rove and his allies would like Patrick Fitzgerald’s 22-month investigation to become known as the Scooter Libby affair. Cheney, whose natural instinct would be to lash out at the prosecutor, is extremely unlikely to do so, given that the criminal investigation centered around his office is ongoing.

But will conservatives who revere the vice president and the hawkish worldview Libby was promoting go along? Many are instinctively inclined to rally around Libby the way they did around Oliver North during the Iran-Contra affair. Instead of seeing the evidence of Libby’s perjury, obstruction of justice, and false statements as efforts to protect his own skin, they’ll decry the “criminalization of politics,” and frame his actions in a patriotic narrative: Whatever lines Libby may have crossed, he was acting in the service of two noble goals. He was protecting his boss and defending the case for the war against Saddam Hussein. Supporters regard Libby’s obsession with refuting Joe Wilson as proper. They see him as merely fighting back against a partisan Democrat who lied about his mission and his findings.

Let’s face it; the extremist rightie “base” is bigger, stronger, and crazier than the Bush Administration. Bush’s position with the extreme Right is like that of a man gripping a venomous snake; if he loses control of the snake, it will bite. But it’s hard for other people to get chummy with a guy gripping a snake.

Also in Time–in his usual halfassed way, Joe Klein almost gets a clue:

Bush’s White House is a conundrum, a bastion of telegenic idealism and deep cynicism. The President has proposed vast, transformational policies—the remaking of the Middle East, of Social Security, of the federal bureaucracy. But he has done so in a haphazard way, with little attention to detail or consequences. There are grand pronouncements and, yes, crusades, punctuated with marching words like evil and moral and freedom. Beneath, though, is the cynical assumption that the public doesn’t care about the details—that results don’t matter, corners can be cut and special favors bestowed.

Klein, if you don’t know by now the idealism is an act, there’s no hope for you. Even though you write several good paragraphs later, such as:

Bush opposed a Department of Homeland Security, then supported it as a campaign ploy—and then allowed it to be slapped together carelessly, diminishing the effectiveness of the agencies involved.

The White House proposed a massive Medicare prescription-drug plan and then flat-out misrepresented the true costs (and quietly included a windfall for drug companies). Every bit of congressional vanity spending, every last tax cut, was approved. Reagan proved that “deficits don’t matter,” insisted Vice President Dick Cheney.

Like I wrote in the last post–Bushies are not serious about governing. And here Klein actually gets good–

Republicans seem better at campaigns, permanent and otherwise, than Democrats. It may be that conservatives just don’t take governance as seriously as liberals do, and therefore have more freedom to maneuver. Didn’t Reagan say government was “the problem, not the solution”? The very notion of planning for the common good, especially long-term planning, seems vaguely … socialist, doesn’t it? The Bush Administration is filled with hard-charging executives but bereft of meat-and-potatoes managers. Not much priority is placed on pedestrian things like delivering the ice to New Orleans or keeping the peace in Baghdad.

Klein goes on to describe the way everything about the Bush Administration, including war, is just part of their perpetual political campaign. It’s actually worth reading. This is Klein, of course, so he’ll be back to wanking in next week’s issue.

And finally–while you’re at Time, don’t miss their article on Patrick Fitzgerald. Makes me want to take the lad home and adopt him.

No Magic Bullet for Bush

As reported by The Observer, yesterday President Bush tried to deflect attention away from his many domestic problems by calling attention to his war in Iraq.

That’s how politically bankrupt he is.

Other presidential administrations have come back from low points and scandals and finished strong. But such a comeback requires attributes of character that I do not believe Bush possesses.

Dan Balz writes in today’s Washington Post:

Friday’s indictment of Vice President Cheney’s chief of staff I. Lewis “Scooter” Libby dealt another big blow to public confidence in the administration, according to a new Washington Post-ABC News poll. Bush’s approval rating fell to 39 percent — the lowest recorded by this poll in his presidency — and a majority of Americans said the charges signal broader ethical problems in the administration. By a ratio of 3 to 1, those surveyed said the level of honesty in government has declined during Bush’s tenure.

With its ability to command public attention and frame the national agenda, the presidency is a supremely resilient institution, and such recent occupants as Ronald Reagan and Bill Clinton have bounced back from adversity. But Bush faces such a complex set of problems — an unpopular war in Iraq, high energy prices, the costly challenge of rebuilding New Orleans, a fractured party, disaffected independent voters and little goodwill on Capitol Hill — that his prospects are particularly daunting.

Beyond that is the question of whether Bush needs to make fundamental adjustments to a governing and political style that has given him electoral success but also left the country deeply polarized. With his Republican base showing signs of discontent and independent voters more disaffected than ever, Bush faces a potential tradeoff on every important decision ahead of him that could cause him to lose as much ground with one part of the public as he gains with another.

Whether he can devise a strategy that successfully navigates between the right and the center may determine just how much he can achieve for himself and his party through the rest of his presidency.

This paragraph from the Balz article highlights Bush’s essential problem:

The president’s advisers recognize the reality in which they find themselves. “What the public wants is back-to-basics governance and decision making,” presidential counselor Dan Bartlett said yesterday. “This is not a situation in which it changes overnight or that there’s a ‘Hail Mary’ pass that changes the dynamic. . . . There’s not a magic bullet.”

The public wants back-to-basics governance and decision making, do they? Then they’ve got the wrong guy in the White House. The essential, terrible truth about the Bush White House is that the Bushies are not serious about governance. This has always been true, but not until the winds of Katrina blew away much of Bush’s facade have so many Americans understood this. Not only had Bush packed FEMA with political cronies instead of serious professionals, but he was so disinterested in the effects of a massive hurricane on the Gulf Coast that his staff had to do an intervention to get him to pay attention.

The Bushie attitude toward governing is exemplified by the famous episode in which Paul O’Neill, then secretary of the treasury, warned that another round of big tax cuts would cause budget deficits. Dick Cheney replied, “You know, Paul, Reagan proved that deficits don’t matter. We won the mid-term elections, this is our due.” In other words, we don’t have to worry that deficits will hurt us politically, and we don’t give a bleep about the long-term effect of deficits on the nation’s economy.

Bush himself seems disconnected even from policies that interest him. He went all-out to sell Social Security “privatization” but doesn’t appear to have bothered his head about the details, like how to pay for it. As I’ve written before, Bush speaks of the passage of No Child Left Behind Act as a great achievement. Yet he’s shown no interest in fixing problems with the program to make it work as promised.

George W. Bush appears to be a “magic bullet” kind of guy. I have read that his oil businesses failed because he was determined to make a big strike rather than slowly and patiently build a business. “To George W. Bush, a Texan who revels in the myth of the wildcatter, running risks in pursuit of the big gusher is a quintessential part of the American character,” says this May 16, 2005 Business Week article. “But as the scion of an aristocratic Eastern dynasty, the budding young tycoon always had a network of family friends and relations to call on. Those golden connections bailed George W. out of his early forays into the oil business.”

As president, Bush struck a political bonanza in September 11. But his biggest gamble was the war in Iraq. See how he threw the dice–he (and his advisors) bet there would be WMDs in spite of flimsy evidence. He and his crew assumed no post-invasion planning would be required, since the happy Iraqis quickly would establish a democracy as soon as they were finished tossing flowers. And he and his crew seemed to believe that the mere removal of Saddam Hussein would be the magic bullet that would bring peace to the Middle East. Why bother with boring ol’ nation building when you’ve got a magic bullet?

Once he realized he’d taken a political hit from his inept response to Katrina, Bush worked hard–to find another “bullhorn moment.” One event after another was staged to show Bush in action. Yet FEMA and the rest the Department of Homeland Security still seem to be drifting. Bush has a rare gift for getting his picture taken with firemen, but whipping a drifting department of his administration into shape is beyond his skill.

After nearly four years of all-Republican rule, 68 percent of American adults are dissatisfied with the direction of the country, according to the Gallup “right track/wrong track” poll. This number was at 28 percent in December 2001, but has risen steadily as Bush’s 9/11 glow has faded. And now people are hungry for “back-to-basics governance” instead of big gambles and photo ops. And I don’t believe Bush can give them that. Even if he tried, which is unlikely, he couldn’t do it. He doesn’t have it in him.

Who Is a “White House Official”?

Following up the last post–per commenter copymark, President Reagan’s labor secretary, Raymond J. Donovan, was indicted in 1985 for grand larceny, later aquitted. So was he not an indicted “White House official”? I believe he doesn’t count because he didn’t work in the White House, but in the Department of Labor. He was part of Reagan’s administration but not part of his White House staff.

I believe the title of Most Guilty Sitting Cabinet Member should go to Warren Harding’s secretary of the interior, Albert Fall, who was convicted and sentenced to a year in prison plus a $100,000 fine for his involvement in the Teapot Dome scandal of 1922. I’ve found conflicting information about whether Fall resigned before or after charges of fraud and corruption were brought against him by the Senate, however. It’s possible he had already resigned before he was charged, but I don’t believe he had. (And speaking of pork–Fall’s middle name was Bacon.)

John Mitchell, Richard Nixon’s attorney general, also was convicted of conspiracy, obstruction of justice, and perjury and sentenced to two and a half to eight years in prison for his role in the Watergate break-in and cover-up. But John Mitchell had resigned as attorney general before he was indicted.

Orville Babcock

You may have heard that Scooter is the first White House official to have been indicted since the Grant Administration. Just for fun, let’s take a look at that last indictee, Orville Babcock.

Background: Babcock was a native of Vermont who graduated West Point in 1861, just in time for the Civil War. By 1863 he was a Lieutenant Colonel under the command of Maj. Gen. Ulysses S. Grant at Vicksburg. In 1864, Babcock became Grant’s aide-de-camp. It was Babcock who delivered Grant’s surrender terms to Robert E. Lee at Appomattox. When Grant became President in 1869 he chose Babcock to be his private secretary.

The Whiskey Ring was a group of liquor distillers who were defrauding the government of tax revenues, in part by bribing revenue agents to ignore untaxed liquor or to supply more tax stamps than were paid for. Grant’s secretary of the treasury, Benjamin Bristow, investigated and obtained indictments against 238 people, including Orville Babcock. Of those, 110 were convicted.

From Grant by Jean Edward Smith (Simon & Schuster, 2001), pp. 590-591:

Grant was initially alerted to Babcock’s possible complicity in July 1875 when he received a letter from St. Louis banker W.D.W. Barnard, a distant relative of Julia’s [Mrs. Grant]. Barnard warned Grant that federal prosecutors in St. Louis were hoping to embarrass the administration and that Babcock had become a target. Grant was shocked that his aide might be involved. He immediately passed the letter to Bristow with the following endorsement: “I forward this for information and to the end that if it throws any light upon new parties to summon as witnesses they may be brought out. Let no guilty man escape if it can be avoided. Be especially vigilant—or instruct those engaged in the prosecution of fraud to be—against all who insinuate that they have high influence to protect—or to protect them. No personal consideration should stand in the way of performing a public duty.” Shortly thereafter Grant told Attorney General Pierrepont that “if Babcock is guilty, there is no man who wants him so proven guilty as I do, for it is the greatest piece of traitorism to me that a man could possibly practice.”

As it turned out, the evidence against Babcock was circumstantial. The prosecution’s case rested on Babcock’s friendship with McDonald[*], his occasional visits to St. Louis, and two cryptic telegrams the president’s secretary sent to the general. Bristow believed the messages were code to inform the St. Louis ring of the status of the Treasury crackdown. The first, dated December 10, 1874, stated—“I have succeeded. They will not go. I will write you.” It was signed “Sylph.” The second, sent on February 3, 1875, read: “We have official information that the enemy weakens. Push things. Sylph.”

Babcock maintained the messages were for Eads[**] and described the status of the Corps of Engineers’ efforts to scuttle the bridge in St. Louis. At the time, Grant trusted General McDonald fully, and it is quite possible the president was using him to funnel information to Eads. When Grant heard Babcock’s explanation, he was satisfied the telegrams were harmless.

A second difficulty for the prosecution was Babcock’s lifestyle. Unlike former Attorney General Williams, the president’s secretary lived modestly within his income. He was not a free-spender, his bank account showed no questionable deposits, and his wife was known for her frugality. His one hobby was raising fine dahlias, which he would share with his neighbors, including the Frederick Douglasses.

In December 1875 Babcock requested a miitary board of inquiry to clear his name, but the prosecutors in St. Louis refused to release files and the board was adjourned. Shortly thereafter a grand jury in St. Louis indicted Babcock “for conspiring to defraud the revenue.” President Grant volunteered his testimony and gave a four-hour deposition to the Chief Justice of the Supreme Court, in the presence of the Attorney General and the Treasury Secretary, Bristow.

Jean Edward Smith continues on page 592 of Grant:

Grant’s testimony silenced all but the most rancorous critics of the administration. The unprecedented spectacle of the president of the United States coming forward voluntarily to defend his secretary, combined with Grant’s unblemished reputation for personal honesty, had an enormous impact. [Secretary of State] Hamilton Fish, one of the most honest men in public life, once said, “I do not think it would have been possible for Grant to have told a lie, even if he had composed it and written it down.” The prosecution continued to present what little evidence it had against Babcock, but it was unconvincing and the general[***] was speedily acquitted.

Orville Babcock died in a boat accident in 1884 and is buried at Arlington National Cemetary.

*General John McDonald was collector of taxes in St. Louis and was one of the 110 convicted.

**James Buchanan Eads was an engineer-industrialist and an old friend of Grant’s who was determined to build a bridge across the Mississippi. The Corps of Engineers had halted construction. The Eads Bridge eventually was built and is still in use.

***Babcock held the brevet rank of Brigadier General.

The Damage Done

A story by Dafna Linzer in today’s Washington Post explains why exposing Valerie Plame Wilson as an agent was a serious matter.

More than Valerie Plame’s identity was exposed when her name appeared in a syndicated column in the summer of 2003.

A small Boston company listed as her employer suddenly was shown to be a bogus CIA front, and her alma mater in Belgium discovered it was a favored haunt of an American spy. At Langley, officials in the clandestine service quickly began drawing up a list of contacts and friends, cultivated over more than a decade, to triage any immediate damage. …

…after Plame’s name appeared in Robert D. Novak’s column, the CIA informed the Justice Department in a simple questionnaire that the damage was serious enough to warrant an investigation, officials said.

The article says the CIA has not done a formal damage assessment, possibly because it is waiting until after legal proceedings are finished. There is “no indication” agents still engaged in covert operations lost their lives because of Plame Wilson’s exposure.

The article quotes Mark Lowenthal, who retired from a senior management position at the CIA in March: “You can only speculate that if she had foreign contacts, those contacts might be nervous and their relationships with her put them at risk. It also makes it harder for other CIA officers to recruit sources.”

Righties everywhere are belittling this episode as no big deal and saying it has nothing to do with national security. As usual, they lie. Possibly they are lying to themselves as much as to the rest of the world, but they lie, nonetheless. As usual, partisan loyalty means more to them than the security of their country.

One other point–nearly all rightie bloggers are saying that “no crime was committed” regarding the exposure of an agent. What Patrick Fitzgerald said repeatedly in the press conference is that, because of Libby’s obstruction, he could not determine if such a crime had been committed.

Update: Today’s Mo Dowd:

Mr. Fitzgerald claims that Mr. Libby hurt national security by revealing the classified name of a C.I.A. officer. “Valerie Wilson’s friends, neighbors, college classmates had no idea she had another life,” he said.

He was not buying the arguments on the right that Mrs. Wilson was not really undercover or was under “light” cover, or that blowing her cover did not hurt the C.I.A.

“I can say that for the people who work at the C.I.A. and work at other places, they have to expect that when they do their jobs that classified information will be protected,” he said, adding: “They run a risk when they work for the C.I.A. that something bad could happen to them, but they have to make sure that they don’t run the risk that something bad is going to happen to them from something done by their own fellow government employees.”

To protect a war spun from fantasy, the Bush team played dirty. Unfortunately for them, this time they Swift-boated an American whose job gave her legal protection from the business-as-usual smear campaign. …

…what we really want to know, now that we have the bare bones of who said what to whom in the indictment, is what they were all thinking there in that bunker and how that hothouse bred the idea that the way out of their Iraq problems was to slime their critics instead of addressing the criticism. What we really want to know, if Scooter testifies in the trial, and especially if he doesn’t, is what Vice did to create the spidery atmosphere that led Scooter, who seemed like an interesting and decent guy, to let his zeal get the better of him.

Mr. Cheney, eager to be rid of the meddlesome Joe Wilson, got Valerie Wilson’s name from the C.I.A. and passed it on to Scooter. He forced the C.I.A. to compromise one of its own, a sacrifice on the altar of faith-based intelligence.

Vice spent so much time lurking over at the C.I.A., trying to intimidate the analysts at Langley into twisting the intelligence about weapons, that he should have had one of his undisclosed locations there.

This administration’s grand schemes always end up as the opposite. Officials say they’re promoting national security when they’re hurting it; they say they’re squelching terrorists when they’re breeding them; they say they’re bringing stability to Iraq when the country’s imploding. (The U.S. announced five more military deaths yesterday.)


See “A Good Start” by Larry Johnson at TPM Cafe.

The indictment makes clear, with no shadow of a doubt, that Valerie Wilson was an undercover officer until exposed by Robert Novak’s column. According to the indictment,

Prior to July 14, 2003, Valerie Wilson’s affiliation with the CIA was not common knowledge outside the intelligence community.

As the prosecutor said at today’s press conference, this ain’t over.

As I wrote in the last post, righties everywhere are in full knee-jerk denial about Valerie Plame Wilson’s status.

Johnson also guesses that the “Under Secretary” mentioned in the indictment is John Bolton, UN anti-ambassador. Another possibility is Marc Grossman, an under secretary for political affairs in the State Department.

Johnson points to this sentence in the indictment:

On or about June 11, 2003, LIBBY spoke with a senior officer of the CIA to ask about the origin and circumstances of Wilson’s trip, and was advised by the CIA officer that Wilson’s wife worked at the CIA and was believed to be responsible for sending Wilson on the trip.

Johnson comments:

Now it gets interesting. Who is the senior CIA officer? There are several possibilities. For example, John Bolton’s Chief of Staff, Fred Fleitz is a CIA officer (no longer undercover) who was in a position to get information about Valerie. At the NSC there were several CIA personnel, including David Shedd, who is now on the staff of John Negroponte. It could also be someone from CIA Headquarters. We will probably have to wait for the trial to get some insight on this front.

A careful reading of the indictment shows beyond a reasonable doubt that there was an organized effort in the White House to go after Joe and Valerie Wilson. At a minimum, Vice President Cheney was witting of this effort. Too bad these guys did not work as feverishly in tracking down Osama Bin Laden. They only had time to attack two American citizens who were serving their country.

Josh Marshall
points to this statement from the indictment:

On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson’s wife worked at the Central Intelligence Agency in the Counterproliferation Divison. LIBBY understood that the Vice President had learned this information from the CIA.

Josh comments:

This is a crucial piece of information. The Counterproliferation Division (CPD) is part of the CIA’s Directorate of Operations, i.e., not the Directorate of Intelligence, the branch of the CIA where ‘analysts’ come from, but the DO, where the spies, the ‘operatives’, come from.

Libby’s a long time national security hand. He knows exactly what CPD is and where it is. So does Cheney. They both knew. It’s right there in the indictment.

On to the trial.