The Next Hurrah

What's that thing nature abhors, again?

by Kagro X

Via Crooks and Liars, there's video available of Sy Hersh's appearance on CNN's Late Edition today, in which he discusses his latest article for The New Yorker.

The gist of Hersh's comments on CNN? That changing the "mission" with regard to Iran makes an attack more palatable to the American public. Instead of the failed smoking gun/mushroom cloud line...

Hersh: You can also sell counter-terror, it’s much more logical. You can say to the American people, we’re only hitting these people that are trying to kill our boys and the coalition forces and so that seems to be more sensible, The White House think s they can actually pitch this, this would actually work…

By all rights, though, the "administration" shouldn't be able to get away with this one, either. Iranian "meddling" in Iraq was as foreseeable and as obvious and likely an outcome as the post-invasion looting and a sustained anti-occupation insurgency, both of which the war cheerleaders claim to have been unable to predict.

Purely from a force protection perspective, isn't it a spectacular failing to have our troops falling prey to Iranian interference at this stage of the game? And pretending it's a surprise?

Just another day in Republican Bizarro World.

Duke Conference: Judges Panel (Reggie Live)

by emptywheel

Gary Hengstler, Director Reynolds Center for the Courts and Media. Importance of having a judicial strategy for the media. Who makes editorial decisions now? previously, you'd give everyone access. BC of conglomeration, editorial decisions are not being made by journalists, they're being made by commercial interests. Justice is in the entertainment and media field becoming a commodity. Tools to work with the media. Protective order. If you're a journalist, they're a gag order; if you're a judge, they're a protective order. Are they doing the reverse of what they were intended to, because in the absence of having the lawyers who know about the case, you'll have the people who are speculating. To what extent is that counter-productive.

LeRoy Millette, Jr., Circuit Court, Prince William County. Presided over Bobbitt case, and John Mohammad case. One of the most important things in Mohammad trial was appointing really good lawyers. They agreed not to speak to the media. They considered the possibility that Mohammad would be tried in other jurisdictions. Incredible amount of discovery that was available--a lot of it that would not be allowed in trial. Did not put that information out for the media to have access to. Biggest problem: Malvo had confessed, that confession was suppressed in Fairfax, believe it was disgruntled law enforcement official. Main tool for a fair jury was change of venue. Gave jurors numbers, they used judges lunch room, questioned jurors to make sure they remained impartial. Want to make court room as normal as you can.

Terry Ruckriegle, Breckenridge, presided over Kobe's trial (not the poodle, but the basketball player). Information got leaked before charges were filed. Decorum order, outlining guidelines for conduct. Approximately 20% of the filings were on the part of the media responding trying to open proceedings.
Court Reporter accidentally released portion of transcripts from closed hearings. Issued an order to delete and destroy those transcripts. "Of course, as you heard Lucy Dalglish say earlier, that's prior restraint, which is like poking a sleeping bear with a stick." That order worked temporarily, Colorado Supreme Court upheld in 4-3 decision. Justice Breyer issued an order. Eventually released about 90% of those transcripts. Accuser's civil attorneys launched a blitz as a result of the release, eventually withdrew from suit. Possibility of prosecutors, defense attorneys, other sources, you may have another source of information being put out to the public through the public.

Duke Conference: Role of the Public

by emptywheel

This panel matches Communications scholar Kim Gross with Scott Bullock with the Institute of Justice and Steve Shapiro of ACLU. Gross talked a lot about framing, particularly the coverage of race and crime. Bullock is talking a lot about working with the media, particularly reaching out to opinion leaders.

Bullock is also talking about putting a client's story up front in their narrative. Clients have to be comfortable speaking to the press--they even do media training. Importance of providing as much of the documents up front.

Institute of Justice does a lot of eminent domain cases (they did Kelo). But since there's such a localized focus on these issues, it's hard to get a national story out of it. Until they could put a national number on it, it didn't really pick up on a national level. A 60 Minutes story appeared just before SCOTUS took Kelo. And when SCOTUS rules against Kelo, it led to a backlash against the practice of takings.

Shapiro emphasizes a point that Bullock made: you can lose in court and win in the court of public opinion. But more importantly, you can win in the court of law but lose in the court of public opinion (cites Brown v. Board of Education and Roe v. Wade). This suggests that litigation is just one tool among other advocacy tools. Shapiro emphasizes importance of giving lawyers media training--you wouldn't send a lawyer to court without preparing the case, so you shouldn't send a lawyer out without media training.

Shapiro mentions there are certain news outlets that aren't interested in real debate (hmmm, wonder which that could be?), so he won't go on those outlets.

Shapiro describes how the selection of clients connects to the framing of the narrative (that is, you can pick which client to build a case around, and you can time the first press conference). It's the criminal justice stories the media is not covering at all that are the real concern.

Shapiro describes trying to find the message that worked with the American public to sustain Geneva Convention for Gitmo detainees. The reciprocity didn't work (not least, because OBL isn't going to extend Geneva Convention to our people). But what did work is for Americans to say, "we're better than that."

Duke Conference Update

by emptywheel

On the comparative access panel, we got the European and Canadian perspective on media access, with a really interesting panel from Gavin Phillipson arguing that in the US the claims of the First Amendment are actually serving commercial interests. He argued that the British system, which made people responsible for leaks, was better.

Lucy Dalglish argued that we don't have as much access as the others made out.

I asked whether the Wen Ho Lee and Hatfill cases are forcing us into a position akin to the British one Phillipson described--that media organizations have to pay the price for improper government leaks. Dalglish didn't really respond, but the WaPo lawyer agreed afterwards that's where we may be heading.

In the Institutional Response to Crisis, Judith Clair and Ron Dufresne used my example of the 80% of the blogosphere that was "dreck" (not my word") and the 20% that had acquired reputation. Clair talked about understanding the structure of the blogosphere before crisis, so you could reach out to the blogosphere. Dufresne pointed out that you might not want to reach out to the 80%--how do you identify who is what? This is, of course, a question Congress and the Courts and everyone else is trying to figure out.

Robert Levick said 56% of reporters are getting their story ideas from blogs, 80% from the web. He does institutional response stuff--say, representing drug companies. So from his perspectives, the fact that the blogs are focusing on things like bad pet food, putting his potential clients behind the mark, is a bad thing. [emptywheel editorial comment: Question is, could someone from his perspective ever flip that? Could you dump enough bloggers-for-pay out there to write credible stuff that was pro-corporate? Or will it always (hopefully) appear dubious??]

Levick talking about Katrina as the loss of Bush's credibility, bc it was a breach of promise. Spinach and pet food--spinach is selling better than it ever has. Toys in China, we've got inspectors in China, which gives a symbolic fact to allow for resolution.

Levick, describing what one of his Arab clients have to say regarding whether lawyers should take the lead on crisis response or not: "Lawyers should be on the bus, they should not be driving the bus." Nervous laughs all around.

The first thing that happened on the Lacrosse case "lessons learned panel" (chaired by Chemerinsky) was the University Relations VP, John Burness, thanking "Dean Chemerinsky." As Chemerinsky said, "that's a different media issue."

Burness then described a former employee of Cheney and Duke alumni calling to ask if there was any way he (or she) could help. Burness responded: You can get your former boss to go hunting again.

Sergio Quintana, reporter from local NBC station. Describing national media getting the access, and not the local media. And the local media getting lumped in with the national media and their mistakes. Emily Rotberg, one of the Chronicle's (Duke's student paper) reporters, echoes the sentiment. She describes a TV reporter using one of her front page stories.

Stuff that doesn't fit in soundbites

by Kagro X

This isn't meant to be a criticism of Hillary Clinton in particular. But it's going to end up that way, because she's the only one of the sitting Democratic Senators running for president who voted for the Kyl-Lieberman amendment the other day.

But I say that this isn't about her in particular because I think there are a lot of Democrats in Congress who make one of the component errors that I think she made in making her decision, even if they eventually come down in opposition to resolutions and amendments like this one.

What do I mean? Well, I just got a look at Senator Clinton's statement on her vote on the Kyl-Lieberman amendment that passed the Senate the other day, and this part grabbed me:

In February, after troubling reports about the possibility of military action against Iran, I took to the Senate Floor to warn that President Bush needs Congressional Authorization before attacking Iran. Specifically, I said it would be a mistake of historical proportion if the Administration thought that the 2002 resolution authorizing force against Iraq was a blank check for the use of force against Iran without further and explicit Congressional authorization. Nor should the President think that the 2001 resolution authorizing force after the terrorist attacks of 9/11, in any way, authorizes force against Iran. If the Administration believes that any use of force against Iran is necessary, the President must come to Congress to seek that authority. Nothing in this resolution changes that.

Prosecutor Panel

by emptywheel

Thomas Metzloff poses a question: In re: Nifong: We had a case in Durham, we had a prosecutor who was saying lots of things on TV, everyone remembers the quotable quotes. What is the message that's learned from Nifong?

Michael Cassidy
More lessons not learned than lessons learned. Brady and lying to court, he was going to be disbarred anyway. (Lists the nuances of the rules on what a prosecutor can say.) Because Nifong agreed to waive right to appeal, we didn't get to reconsider those rules.

Colm Connolly
True believer that 99.9% of USAs and AUSAs do believe that US does not accomplish justice by arrests, it's whenever justice is done in the courts.

Marhsa Goodenow
The lesson that hasn't been learned is that a criminal defendant has a right to be tried in the court room, media doesn't have the right to try a criminal in the public.

Loretta Lynch Hargrove
A former prosecutor, also grew up in Durham (African American), how do you find that balance? Interacting with the press is one of the ways a prosecutor can be accountable to the community, whether elected or not. There seemed to be a stunning lack of clarity on what could and couldn't be said. Need to find balance.

The media seemed to become part of the story, the media coverage fueled the actions against Nifong.

Defense Attorneys Panel

by emptywheel

As expected, Mark Geragos is in CA trying to keep Brent Wilkes out of jail. And perhaps to subpoena a bunch of corrupt Congressmen.

Laurie Levenson
Makes a joke about Geragos being in trial or on TV or both.

Talks about loading up your pleadings--"they're more likely to get it right." You can comment on public records, so put stuff in your pleadings so you can refer back to it.

Discussion of cameras in the court room. May be courts saying cameras are alright in near future.

Should there be ethical codes on those who appear on the press? (Victoria Toensing, I'm looking at you!!) Suggestion of voluntary guidelines. Should lawyers have to disclose biases (she raises Geragos commenting on Scott Peterson case after having representing him (or do I have it reversed or the wrong damn pop culture case)?

Michael Tigar

Makes a case for the importance of First Amendment protections in cases.

Notes that on Nichols case, people would talk to NYT but not the defense team themselves.

"If you're not restrained it harms the client. I don't think jurors like it." Quotes a juror saying, "I think it makes a piss poor impression," appearing on TV.

Sound bite journalism is bad for the client, because we are not in charge of how it's used.

Harold Haddon

Talks about the JonBenet Ramsey case--the leaks from the FBI and Boulder authorities in an attempt to get one of the parents to flip on the other.

Defense lawyers without as much information as the police early in the case--prevents defense lawyers from speaking publicly when the narrative on the trial is being set.

Has Dick Cheney Outlasted Bill Leonard?

by emptywheel

Bill Leonard is resigning at the end of the year.

It is with deeply mixed emotions that I inform you I have decided to leave government service at the end of the calendar year.

[snip]

I will miss all the great public servants at the National Archives as I move on to the next phase of my professional life. Nonetheless, I look forward to new opportunities to serve this great nation and the American people.

Leonard, of course, is the guy who took on Dick Cheney's creative theories about classification and declassification. As Secrecy News notes,

In pursuit of that integrity earlier this year, Mr. Leonard famously challenged the Office of the Vice President, which decided in 2003 that it would no longer submit to longstanding classification oversight procedures.

After the Federation of American Scientists filed a formal complaint concerning the OVP's non-compliance, Mr. Leonard urged Cheney aide David Addington to reconsider its position. When Addington ignored the request, Mr. Leonard exercised his authority to raise the issue with the Attorney General, who is obliged by the executive order on classification to render an interpretation of the order's requirements.

Although no response from the Attorney General was forthcoming, the episode turned the Vice President and his unchecked secrecy into an object of public ridicule. (See "Vice President Makes Secrecy Policy a Joke (Literally)," Secrecy News, June 26, 2007).

Mr. Leonard's unexpected resignation naturally invites speculation that the friction between him and the Office of Vice President was a factor in his departure. However, his associates say there is no specific evidence of that.

Perhaps we ought to make a concerted effort to get a ruling on whether Dick is a Fourth Branch before Leonard leaves?

Checking In

by emptywheel

Things I'm going to get in trouble for saying publicly at Duke:

• That 80% of what is out in the blogosphere is crap. Hodding Carter had said half was. But I wasn't thinking about anyone in this corner of the blogosphere.
• That we bloggers were parasites on the legal teams of the mainstream media, who pay lawyers a lot of money to make sure things like the Libby grand jury recording gets released to the public.

Other than that, nothing too earthshattering newswise. I learned that the WaPo did get beat up by Lurita Doan's lawyers for releasing the draft of the report on her Hatch Act violations. Which set off a very interesting discussion about whether publishing PDFs of draft documents would and should affect the WaPo's reputation.

Afri ... um EuroAfriCom

by emptywheel

Scout prime has been tracking something I've been watching, too. The new AfriCom military command? Well, the entire continent of Africa has told us, "no, thanks."

The Pentagon's plan to create a US military command based in Africa have hit a wall of hostility from governments in the region reluctant to associate themselves with the Bush administration's "war on terror" and fearful of American intervention.

A US delegation led by Ryan Henry, principal deputy under-secretary of defence for policy, returned to Washington last week with little to show for consultations with defence and foreign ministry officials in Algeria, Morocco, Libya, Egypt, Djibouti and with the African Union (AU). An earlier round of consultations with sub-Saharan countries on providing secure facilities and local back-up for the new command, to be known as Africom and due to be operational by September next year, was similarly inconclusive.

The Libyan and Algerian governments reportedly told Mr Henry that they would play no part in hosting Africom. Despite recently improved relations with the US, both said they would urge their neighbours not to do so, either. Even Morocco, considered Washington's closest north African ally, indicated it did not welcome a permanent military presence on its soil.

"We've got a big image problem down there," a state department official admitted. "Public opinion is really against getting into bed with the US. They just don't trust the US."

The article cites public opinion and the desire to avoid building obvious terrorist targets in their countries. But I suspect two more things are at work, too. We're not going to establish an AfriCom headquarters without negotiating an agreement with the host country that gives our soldiers some immunity from local law enforcement, gives us a big financial bonus for establishing the headquarters, and a whole bunch of other goodies. (Read Chalmers Johnson's Nemesis if you're interested--here's a taste.) Once upon a time, such an arrangement was a good acceptable deal for the host country because, well, the US was the uncontested hegemon of the world.

But now, particularly in Africa (where Hu Jintao has been very busy making friends in recent years), that's no longer true. So I suspect that, when faced with the opportunity to cede a good deal of sovereignty so the US' cowboys can come in and push local folks around, that doesn't look like such a great deal anymore.