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Wednesday, September 29, 2004

Flip Flopping and Outing 

The Republicans have had enormous success in painting Kerry as a "flip flopper", which has harmed Kerry far more than their usual line of attack, that he is a "liberal". Unlike much Republican spin, I've heard "flip flopper" not just from conservatives, but often from liberals.

The question is: Why is flip flopping such a bad thing? As Emphyrio (correction, LarryE) suggests in comments, changing one's mind in response to new evidence can be a sign of maturity. (To be sure, changing one's mind can be opportunism as well -- Bush I's views on abortion and "voodoo economics" come to mind.)

The answer was suggested to me by Atrios' post concerning "outing" gay public figures, which the press justifies (in theory at least) as "outing hypocrisy".

Many observers have pointed out that a central failing of the mainstream media is its unwillingness to mediate between competing arguments. "Balance" requires simply transmitting both arguments, even when one is false, disingenuous, or weak.

This leaves "hypocrisy" as the one place the press can safely attack. Bush thinks the threat of global warming is unproven? Well, that's his opinion. Democrats have a different opinion. We report, you decide. But if a candidate takes a position contrary to a prior position -- suddenly it's no longer a difference of opinion. If you were right when you opposed X, you must be wrong if you supported it later -- so a "flip flop" is incontrovertible proof (unlike a scientific consensus or something) that the candidate was wrong at some point. Gotcha! Oh, you have an explanation for why you changed your mind? The circumstances are different? Well, you say that, but the other side says you're a flip flopper. Guess that's just a question of opinion again. We report, you decide.

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Tuesday, September 28, 2004

Supreme Court Clerks for Truth 

Orin Kerr at Volokh (link to main page, permalink broken) reports that "about 90 former Supreme Court clerks (along with some prominent practitioners)" have signed a statement objecting to a group of clerks speaking to Vanity Fair about the Bush v. Gore deliberations.

While the propriety of the conduct of the clerks giving interviews seems to me subject to good faith debate, let us take a moment to consider the objectors. The objecting clerks and practitioners claim to represent a diversity of views:

"Although the signatories below have differing views on the merits of the Supreme Court's decisions in the election cases of 2000, they are unanimous in their belief that it is inappropriate for a Supreme Court clerk to disclose confidential information, received in the course of the law clerk's duties, pertaining to the work of the Court."
Do those "differing views" mean they're divided between the per curiam opinion and the Rehnquist concurrence? While there do seem to be a few Democrats on the list (Jeffrey Bleich is one, though he just received a significant appointment from Schwartznegger), it appears to be heavy with hard-core Republicans. The "prominent practitioners" are overwhelmingly so:

Theodore Olson -- Argued Bush v. Gore for Bush; now Bush's SG.
Douglas R. Cox -- Olson's former partner; co-author of Bush's Supreme Court Brief
Jan Baran -- Former General Counsel of RNC and Bush I for President
William P. Barr -- Bush I's Second AG
Michael Carvin -- Represented Bush in Florida recount
Mark Evans -- Partner of Peter Huber, author of Hard Green, Saving the Environment from the Environmentalists: A Conservative Manifesto and Law and Disorder in Cyberspace . . . Abolish the FCC and Let Common Law Rule the Telecosm
Charles R.A. Morse -- Federalist Society, Litigation Group Publication Committee
Richard Thornburgh -- Bush I's First AG
John Thorne -- Telecom lawyer who recently worked with Ted Olson on major appeal; Bush donor
The former clerks include Kenneth Starr -- whose sudden concern for official confidentiality is quite convenient after pressing for the testimony of Clinton's secret service entourage and using leaks as a prosecutorial tactic. And Republican power broker Boyden Gray. And Bradford Berenson, member of the Federalist Society and former counsel to Bush I. And Rebecca Benyon, former special assistant to Bush II. And Peter Huber (above). And so on.

And by the way, 90 clerks may seem like a lot, but that's fewer than three years' worth. Supreme Court clerks tend to have prominent careers and be easy to find, so the fact that they could only get 90 signatures actually strikes me as pretty weak.

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The State Of The Debate 

Liberal Oasis today has an excellent analysis of the dynamics and key strategies for Thursday's debate. The most critical part is the terrific proposed response to the inevitable question about Kerry's alleged flip-flopping over Iraq. If Kerry can hit that one out of the park, what does Bush have left? Seriously, Bush's greatest strength is the perception that he's tough, resolute, and effective on terror -- but I just don't see how he gets any better on those concerns in a debate because (a) he's at his ceiling anyway; and (b) Bush's strength comes from style, not substance, so it will not be improved by an evening's focus on substance. To win the debate, Bush has to keep Kerry down -- solidify the flip-flopper, weak on terrorism, not ready to command attacks that they have been floating for the last eight weeks. And, ultimately, those attacks all depend on the flip-flopper argument -- so where does he go if he's stymied on that one?

A second critical, and inevitable, question is something like: Do you consider the candidates' service in Vietnam relevant to being elected President in 2004? Again, Kerry has to be ready to hit this one out of the park. The answer has to be yes, since Kerry has run on that experience. Obviously, he needs to make the case that a President who has killed and been wounded for his country will make military decisions in a very different way (a good chance to remind voters of "Bring it on!"). Even better, I'd like to hear the following:

My opponent supported the Vietnam war, but his father's friends got him into the Air National Guard so he didn't have to go fight. I had my doubts about that war, but I volunteered for combat because it was the right thing to do. Maybe that's what my opponent means when he keeps calling me a flip-flopper.
That could be a moment like Reagan's "youth and inexperience" comment in the second Mondale debate -- a moment LO urged Dean to seize back in January. More than a reasoned argument about complexity and nuance, that could diffuse the other side's central point with humor -- and vividly point out the absurdity of demanding a simple and false consistency.

Bottom line: I'm convinced that LO is right that Kerry is ready for this debate. My expectation is that, even if Bush makes no major flubs, the dynamic is going to shift toward Kerry after the debate because he will come out of it perceived as presidential and ready to command.

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Should I Take This As A Hint? 

Just posted (an hour before the stated byline):

"Counseling May Beat Sleeping Pills for Insomnia".

UPDATE: Guess not.

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Saturday, September 25, 2004

CBS: Take Two Tylenol and Call Me in the Morning 

Atrios reports that CBS is postponing a report "that questioned Bush administration rationales for going to war in Iraq" until after the election. The report was ready to go on September 8. CBS says vaguely, "[I]t would be inappropriate to air the report so close to the presidential election". The real reason, of course, is that CBS has absolutely no credibility to report a story criticizing the administration for relying on forged documents.

Now I understand that the attacks on CBS are an orchestrated right-wing campaign. But that doesn't matter, because in this case they have something to complain about. Moreover, the right wins by keeping the controversy alive and, thereby, crippling any remaining ability the media has to check Bush's dishonesty. But the public wins if CBS actually does something to fix the problem. While I have expressed some sympathy for the idea that Rather should go, it is clear that is not nearly sufficient. If CBS is in effect admitting that it lacks the credibility to report a story of critical importance to its viewers at the time it would be of greatest interest to its viewers, it must do something more than what it has done so far, which is set up a commission.

CBS needs to approach this the way Tylenol did when its reputation was at risk over the cyandide incident. Tylenol of course acted quickly to address the problem -- an opportunity cBS has already lost -- but there is still a chance for CBS to act aggressively to show the public (and its investors) that it is fixing the problem. A commission would have been fine if CBS had gone that route before Rather's spirited on-air defense of the story, but not after. I frankly don't see this ending well unless the response includes not just Rather and Mapes but terminations going up to the top (CBS News President Andrew Heyward) -- and soon.

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Friday, September 24, 2004

Court Packing Is So 1990s 

Constitutional amendments are nearly impossible to pass. Supreme Court Justices refuse to die. What's a good conservative to do?

The right's embryonic strategy is to pass laws of debatable constitutionality and then prohibit courts from reviewing them. Via Lucia, the House has passed a bill prohibiting federal courts from hearing challenges over the words "under God" the Pledge of Allegiance. Lucia links to "Volokh who thinks it's probably constitutional, Ox Blog who thinks it's not and Findlaw who thinks the issue is unclear."

Like Volokh, I will start by acknowledging that I am not an expert in this area before adding my observations:

1. Volokh's suggestion that "if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do" is actually of little consolation to advocates of judicial review. The right of Congress to strip state courts of jurisdiction in various areas of federal concern is well-established. If the drafters have overlooked this loophole, they will surely correct that in later generations of these statutes.

2. OxBlog's argument that jurisdiction stripping is prohibited by the mandatory language of Article 3, Section 2 (the federal judicial power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"; emphasis added) is appealing, but flawed. The same mandatory language applies to "Cases ... between Citizens of different States", so-called "diversity cases", yet again it is well-established that Congress may limit that jurisdiction. (Among other limitations, under current law, diversity disputes must exceed $75,000 to be heard by a federal court.)

3. A potential test case may already exist. The federal Junk Fax Law creates a private right of action for recipients of certain unsolicited faxes, yet requires those actions to be brought in state court (although actions by state attorneys general must be brought in federal court). To my non-constitutional-lawyer eyes, the statute would seem to raise at least colorable First Amendment concerns that are beyond the original jurisdiction of any federal court (unless a state attorney general brings an action or is close enough to doing so that a declaratory judgment action is plausible). There may be important differences between the Junk Fax Act and the statutes Lucia cites (notably that the jurisdiction stripping is implicit rather than explicit), but I cannot imagine a more sympathetic test-case for jurisdiction stripping -- junk faxes are unpopular, and federal judges have little interest in clogging their dockets with $500 cases.

4. Textual arguments may be the wrong way to go on an issue as fundamental as this one. At least as critical is the kind of structuralist argument advanced by Charles Black in his classic Structure and Relationship in Constitutional Law. Such an analysis would ask how jurisdiction stripping would square with the kind of polity that was intended by the framers, as modified by subsequent devlopments, including critically the Reconstruction Era amendments and a two-century history predicated on the centrality of judicial review. Structuralism would not look kindly on jurisdiction stripping. Nor, as citizens, should we.

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Wednesday, September 22, 2004

Fair Use ... Not 

I hate to go back to basics here, but just because a book is out-of-print does not mean you are allowed to copy it and put it on the web.

Notwithstanding, on Friday the web site "John Kerry's The New Soldier" is advertising that you can "Read John Kerry's book The New Soldier online for FREE". The site posts the entirety of "The New Soldier" by John Kerry and Vietnam Veterans Against the War. If the RIAA can use subpoenas to find out when 12 year olds are swapping music, I would guess that the copyright holder could prevail on Blogger (our mutual sponsor) to identify the infringer (listed only as "Ricky" on the site).

Legal niceties aside, Ricky is fooling himself if he thinks this is damaging to John Kerry. Beyond the startling realization that guys wore goofy haircuts in 1970, the parts of the book written by Kerry are his already well-known congressional testimony and the Epilogue. Since Ricky's been so kind as to expose himself to liability by posting it, I recommend reading Kerry's Epilogue. I felt a chill down my spine reading the following:
We were sent to Vietnam to kill Communism. But we found instead that we were killing women and children. We knew the saying "War is hell" and we knew also that wars take their toll in civilian casualties. In Vietnam, though, the "greatest soldiers in the world," better armed and better equipped than the opposition, unleashed the power of the greatest technology in the world against thatched huts and mud paths. In the process we created a nation of refugees, bomb craters, amputee, orphans, widows, and prostitutes, and we gave new meaning to the words of the Roman historian Tacitus: "Where they made a desert they called it peace."
Kerry continues with humility and a mature patriotism:
The New Soldier does not have all the answers. We do not even pretend to. Unquestionably we lack some of the depth of experience from which to provide guidelines for many policy questions....
I still want to serve my country. I am still willing to pick up arms and defend it--die for it, if necessary. Now, however, I will not go blindly because my government says I must go. I will not go unless we can make real our promises of self-determination and justice at home. I will not go unless the threat is a real one and we all know it to be so. I will not go unless the people of this country decide for themselves that we must all of us go.
Even if the contrast with Bush's admitted purpose of avoiding combat in Vietnam were not so obvious, I say that Kerry's view is exactly what Americans want in a Commander in Chief: That we as citizens have an obligation to fight and die for our country, but if and only if the need is real.

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Whither Colorado? Part II 

On September 12, I argued that the Colorado ballot initiative to allocate the state's electoral votes proportionally was a "recipe for disaster" because the outcome of the election will be tainted if a court has to decide the validity of the initiative after the election, when the decision's effect on the outcome of the election will be known.

Today, via electoral-vote.com, Loyala law professor Richard Hasen agrees that "we can definitely keep the Colorado scenario within the realm of possible election-day disasters in the making."

What's interesting is that there is a possible solution to this disaster. The federal Declaratory Judgment Act provides that, where there is an "actual controversy", a federal court "may declare the rights and other legal relations of any interested party seeking such declaration".

Whether the DJ Act could be used in a case like this one -- and by whom -- would raise enough procedural issues to keep civil procedure professors happy for years, but it's interesting that no one has tried. Presumably, Republicans haven't tried because they think they will win if an outcome-dispositive case comes to the Supreme Court. On the other hand, though, they have more to lose, since the smart money is still on Bush winning Colorado. The Dems may figure that they're likely to lose the state and have enough of chance of flipping O'Connor or Kennedy that they'll just leave the initiative out there as possible bottom-of-the-ninth grand slam. Most of all, probably neither side wants to take a position, get bounced from court on procedural grounds, and then have to take the opposite position on the merits after the fact.

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Monday, September 20, 2004

Retraction 

Having praised Dan Rather for sticking to his guns, I feel obliged to comment on today's report that CBS is about to announce that the documents are not in fact authentic.

My praise, of course, was predicated on the idea that Rather and CBS knew what they were talking about. As it is, it will be the defense of the story, rather than the story itself, that threatens Rather's job. While the right began to call for Rather's resignation before the September 10 defense of the story, those demands were unreasonable. News organizations make mistakes. By itself, that is not such a big deal.

But CBS and Rather knew that their source was questionable. They knew that he had already told, retracted, and retold a story about Bush's records being destroyed, suggesting that he did not have these documents as recently as 2000. They knew that the expert support they had was a lot thinner than they were letting on. Knowing all that, it was still premature to retract, but they should have acknowledged that legitimate questions had been raised and said they were going to investigate. It is that mistake in judgment -- not the initial reporting -- that will, and probably should, cost Rather his credibility and, as a consequence, his job.

For my own part, the warning sign that I should have heeded was Rather's demand that he see "definitive proof" that the documents were not authentic, a sign that Rather was not approaching this story in a properly open-minded way.

On a related point, I agree with Emphyrio that Rove is not the source of the forgeries. Rove more than anyone is aware that lies are often believed even after debunked, so I just don't see it as a strategy that fits his m.o. However, the timing, source, and coordination of the Republican response does suggest that the RNC has a mole in CBS News who leaked information about the upcoming story to the Bush campaign. I hope CBS plans to investigate that as well.

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Friday, September 17, 2004

Trojan Horse 

Just in case you think that the organized opposition to gay marriage is about something other than discrimination, read this article. Two right-wing groups are using "gay marriage" as a code word to stoke opposition to a ballot issue that was designed to oppose discrimination -- but you can't just come out and say you're in favor of discrimination these days.

On a related topic, check out Feministing on the right's increasingly Orwellian strategy.

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Talking Points Memo 

I suspect most readers of this blog already read Liberal Oasis, but if you don't, check out today's memo responding the most common Bush lies/talking points/nonsense. Whether you want to be able to defend Kerry with other voters, or are wavering yourself, go read it.

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Housekeeping 

Hugo has a post on the issue of hiring someone to help with household work that is worth reading, both for what he says and for the discussion going on in comments. I have some pretty strong opinions on this one, but to save time I'm going to just copy here what I wrote in comments there (with a few elaborations and corrections):

If an employer pays an employee well and treats him or her with respect, there is no reason to feel guilt about hiring someone to do household work, unless you believe that no one should work for someone else ever, that we should all be self-sufficient farmers on our own land. It makes no difference whether you are a boss in your home or in a workplace. In both situations, you have an obligation to behave in appropriate ways toward your employee, to pay them on the books and pay social security for them, etc.

After all, people clean toilets and mop floors in businesses, too, and I don't hear much clamour about how those who run a business should clean their own toilets instead of hiring someone else to do it.

This is not about belittling the work involved in housecleaning--in fact it's the opposite--it's saying it's a real job like any other that should be treated as such. Unfortunately, there are employers of house cleaners who don't see it this way, and who are abusive or exploitative toward the people they hire and/or have different expectations about what the relationship is or should be because it is happening in their house. This is probably exacerbated/facilitated in some cases by the fact that these employer-employee relationships are usually taking place in a private rather than public setting. But there are too many abusive and exploitative employers in business for this to be the distinction that makes the difference.

What is different about this particular kind of labor that it is somehow considered unacceptable to hire another person to do it for us? It's labor that has a ton of gender-related baggage attached to it, that's what.

This part of the Ehrenreich book (and her related articles) drives me absolutely batshit. As far as I can tell, the jobs that Ehrenreich has some kind of moral objection to hiring someone else to do are all "female" jobs. She never talks about the evil of hiring someone to mow the lawn or plow/shovel the driveway... It's all about how morally bankrupt it is if a WOMAN hires another woman to do certain kinds of work in her house. [And Ehrenreich consistently blames middle-class women without paying any attention to the middle-class men they most-of-the-time share those households with.]

In pre-industrial times in the West (and extending up until 1900 in some places), having servants in the household and being a servant had very different meaning than they have come to have since then. You did not have to be rich, or even "business class" to have servants. Look at U.S. census documents from the 1800s--farm households, and other not-well-off households had people living with them to help out with all the work that had to be done to keep a household going. For the most part, this service was done not by people in a different social class, but by people in a different life stage. Young adults (both men and women) went to live in other households for a period of their lives before they married and formed their own households (and had their own 'hired hands').

The idea that there was some moral imperative attached to doing your own housework, or some shame attached to having someone else do some of it, was basically an invention of the 1950s. Read the chapter on the 1950s in Stephanie Coontz's The Way We Never Were.

Who benefitted from this shift? Who suffered from it?

I think the idea of attaching shame to not doing all of your own housework is a load of shit dumped mainly on women that we need to fight back against.

It is legitimate to make choices about your time and how you want to spend it. It is also a privilege to be in the position to be able to make choices about your time, and that is always important to keep in mind. If I spend two hours a week working to get John Kerry elected (and I wish I had time for more), because I want jobs and health care and better wages for a large group of people, am I doing something immoral because I could be spending those two hours a week cleaning my bathrooms and mopping my floors, and then we wouldn't have to hire anyone to help with those jobs?

Reminds me of the old Kinky Friedman song...
Early every morning you’re out on the street
Passing out pamphlets to everyone you meet.
You gave up your Maiden Form for Lent
And now the front of your dress has an air scoop vent....

Get your biscuits in the oven and your buns in the bed
That’s what I to my baby said,
Women’s liberation is a-going to your head,
Get your biscuits in the oven and your buns in the bed.



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Thursday, September 16, 2004

Lady Killers 

Last night, BBC radio had a story about the Beslan school massacre that focused on the female hostage takers -- "Black Widows", so named because they had lost a (male) relative to the struggle with Russia. According to the story, they were wired with explosives, like suicide bombers, but they were still presented as somewhat sympathetic figures. One Russian girl described how one of the Widows had become her "friend" by getting her a glass of water. The story reported that two of the Widows had been detonated by one of the (male) leaders because they had questioned the attack when they realized that the target was a school.

I have no way to evaluate the accuracy of the BBC's portrayal of the Black Widows, but it reminded me of our media's fascination with female criminals. In particular, I was reminded of: (a) the hand-wringing over female Palestinian suicide bombers a few years back; (b) the entire wall of Carolyn Warmus videos at my local Blockbuster; (c) Court TV's "Women Who Kill"; and (d) the absolutely absurd amount of attention paid to the recent release of a female statutory rapist.

I haven't really thought through what this says about our media or our society, but my initial reaction is that every time one of these stories hits it's as if people had never considered the possibility that women might have violent or sexual urges -- and now we have to rethink all of our comfortable assumptions. Maybe if people could step back from the need to generalize about what "men" or "women" "are like", we wouldn't have to have so much anguish (or titillation?) when those generalizations are upset.

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Wednesday, September 15, 2004

Printing Ballots, Part II 

As I predicted here and here, the Republicans' underhanded, though legal, maneuvering has failed to assure them of keeping Nader on the Florida ballot. The trial judge has ordered him back off and ordered the four counties that have already mailed ballots with his name to mail replacements. (I'd be interested to know whether those four are likely victims of Hurricane Ivan, supporting the Republicans' stated rationale, or are Republican-dominated counties outside the storm's direct path, suggesting Republican efforts to make Nader a legal fait accompli.)

In any case, the next decision point is in the Florida Supreme Court Friday. Since ballots still must go out per federal consent decree by Saturday, there will presumably be a late Friday appeal to the U.S. Supreme Court by one side or the other.

In the meantime, Jeb's appointee, Ms. Hood, had better get her printers working on the ballot without Nader. To oversimplify a bit, the Supreme Court has jurisdiction to stay a federal consent decree, but the Florida Supreme Court does not. (It could, in theory, order Florida not to send out ballots pending final resolution of the case, but that would merely put state officials in the position of having to choose which order to violate.) Unless a stay is entered by the Supremes, therefore, Ms. Hood must mail ballots Saturday. Saying that you expected a valid court order to be reversed is a pretty weak excuse for contempt.

My guess right now is that the Florida Supreme Court affirms and the U.S. Supreme Court declines to take the case -- result: Nader is off. (If you like playing that game, only two of the seven justices are new Jeb Bush appointees post-Bush v. Gore.)

UPDATE: The ballots without Nader are apparently ready to go if that's the way this all comes out.

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Tuesday, September 14, 2004

Printing Ballots 

Via Kos and Ezra, Florida's elections director, with the approval of Jeb Bush, has maneuvered to print ballots with Nader's name on them, despite a temporary injunction that Nader not be included.

There is still some hope that Nader will be left off the ballot. I'm not an expert in Florida procedure, but according to the Reuters article, what they did was not necessarily illegal, because the judge's injunction was automatically stayed by the filing of an appeal. (Though I would think the State's filing an appeal in what is really Nader's case is rather unusual.) In any case, the appeal will proceed and, if Nader loses, the appellate court can simply order the ballots reprinted. Time is tight because there is a federal consent decree requiring overseas ballots to be sent by September 18, but I don't believe that reprinting is impossible. (If I were representing the Dems, I would be in the appellate court tomorrow morning seeking to renew the temporary stay until the court can sort things out.)

I assume that the Republicans are trying to set up the argument that you can't reprint ballots once absentee ballots are cast, but they tried that one when New Jersey reprinted the Senate ballot for Lautenberg in October 2002 and the Supreme Court wasn't biting -- even though that was a far less appealing case for permitting reprinting than this one is.

By the way, in case you still think Nader has an iota of integrity left, you should know that Nader's lawyer in the case is Kenneth Sukhia. Sukhia's resume: After working for Bush in the 2000 Florida election dispute, nominated by Bush to the federal bench, but not confirmed. Defended anti-abortion parental notification law at Jeb's personal request, and represented Jeb personally when "critics of then-candidate Bush's role in a business selling water pumps to Nigeria came under fire in the midst of the campaign". We know Ralph never gave a damn about choice, but last I heard he was still pretending to fight crooked capitalists.

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Monday, September 13, 2004

Osama Loves John Kerry, Or Not, Part II 

I argued here that the Republicans are seeking to "pre-spin" a terrorist attack between now and the election as an effort by al Qaeda to promote the election of John Kerry, even though the evidence suggested that, if anything, a terrorist attack would help Bush.

At the time, the evidence I relied upon was indirect. Now, via Donkey Rising, we have a Fox News Poll that supports exactly the same conclusion. The Fox poll of likely voters, taken September 7-8, shows that 34% of voters would be more likely to vote for Bush in the event of a terrorist attack, while only 29% would be less likely (Question 41).

On a related point, in the very next question Fox gets darned close to push-polling:
42. If there is a major terrorist attack in the United States before Election Day where the terrorists demand the U.S. leave Iraq, would you be more likely to favor:
1. Removing U.S. troops from Iraq immediately, or 25%
2. Increasing military pressure and fighting harder, or 33
3. Keeping U.S. policies unchanged? 29
4. (Not sure) 13
It's certainly possible that a terrorist attack could be accompanied by such a demand, but a lot of things are possible, and it is frankly inconceivable to me that the United States would actually withdraw from Iraq under such circumstances, whether under Bush or Kerry. The question seems a lot more interested in pushing the right's misguided notion that attacking Iraq was a part of, rather than a distraction from, the war on terror, than it is in finding out opinions concerning a genuine issue of interest to the public.

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Sunday, September 12, 2004

Whither Colorado? 

Infuriating as it is to see Kerry behind nationally againt a President who is so fundamentally flawed, the electoral map, via electoral-vote.com, remains quite promising. The current "score" has Kerry with 273 EVs, 2 more than necessary to win. The reason why that's so promising is that it charts a course to victory that does not include winning any of the presumptive big three of Florida, Ohio, and Missouri. Moreover, while there are a number of Kerry states that we could lose (NH, MI, WI, IA, MN, NM, and OR come to mind), there's only one that I would be genuinely surprised to win. That one, and on this map it could be dispositive, is Colorado. I don't know enough about Colorado politics to know what's going on there, but it's a state that's worth watching.

UPDATE: There's a Colorado ballot initiative that, if passed, would allocate electoral votes according to percentage of the popular vote. Under that scheme, Kerry would be at 268, short of the magic number. Of course, since the state could easily go Republican, this initiative could hurt Bush as easily as Kerry. Since there are going to be court challenges, the only way the enforceability of the provision will be determined is after we know whom it would help. That is a recipe for disaster because, given the history of Bush v. Gore, no court will be able to decide the issue without accusations of partisanship. All Coloradans of both parties should oppose this initiative.

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Meanwhile, Back in the Middle East 

On the occasion of September 11, Juan Cole looks back at what Al Qaeda has accomplished and what we have accomplished since September 11, 2001. It's a lengthy post, worth reading, but the bottom line is, the war on terror is going badly, and the reasons all point to Iraq.

Meanwhile, here's the "most emailed story" on al Jazeera, Israeli Rabbis: Don't spare civilians:

In a letter to the Israeli defence minister, Shaul Mofaz, published on Tuesday, the rabbis said killing enemy civilians is "normal" during the time of war and that the Israeli occupation army should never hesitate to kill non-Jewish civilians in order to save Jewish lives....

The rabbis quoted a Talmudic edict, or religious ruling, stating that "our lives come first".

"The Christian preaching of 'turning the other cheek' doesn't concern us, and we will not be impressed by those who prefer the lives of our enemies to our lives," they said.
The Jerusalem Post offers a slightly different, but no more comforting, translation:
"According to Christian law, one must turn the other cheek; but according to Jewish law, we must first and foremost protect ourselves. If 10 civilians are killed so that we can save the life of one IDF soldier - so be it."
I'm just guessing that the rapid circulation of that story among al Jazeera's readers is doing lots for protecting Israeli soldiers. I mean, I certainly appreciate the need to protect Israeli soldiers, but I have a fair bit of confidence that Minister Mofaz, who fought for Israel in three wars plus Entebbe, was taking that seriously before these yahoos got involved. If they want to protect Israeli soldiers, they would do much better to stop resisting when those soldiers come to dismantle illegal settlements.
UPDATE: Minor typographical and editorial changes.

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Saturday, September 11, 2004

Do You Remember When ... ? 

Anonymous sources are a necessary, but problematic, part of news reporting. Without them, many stories would not be reported. With them, many stories are hard to evaluate.

Dan Rather's story about Bush's guard service relies heavily on anonymous sources, so we are forced to rely on his (and CBS's) integrity and professionalism. Therefore, I thought it might be interesting to look back on how this kind of thing had played out before.

Does this sound familiar?

A CBS News report that CIA Director William Casey played a central role in the diversion of Iranian arms sale profits to Nicaraguan rebels is false and ''garbage journalism,'' the CIA said Friday.

CBS quoted congressional sources Thursday as saying White House documents and computer tapes show Casey ''had to know'' about the diversion and that the spy chief played a ''central role'' in the affair.

Asked to comment on the report, CIA spokesman George Lauder said it ''is totally untrue.''

''The CBS report is a disgrace to journalism,'' Lauder said. ''(CBS anchor) Dan Rather should be ashamed to report slanderous conclusions from information from an anonymous source and admit he has no proof to support what he says. ...

CBS spokeswoman Ramona Dunn, informed of Lauder's denial, said, ''We stand by our report.''

UPI, January 16, 1987 (via Nexis pay service).
How'd that play out?
The guiding hand behind secret Iran-contra operations, Lt. Col. Oliver L. North testified yesterday, belonged to the late CIA Director William J. Casey. By North's account, Casey was effectively his personal case officer from 1984, when the secret contra supply operation was "almost drawn up" by Casey, until early last November, when Casey suggested that it was time to "get rid of things . . . clean things up."

Bob Woodward, Casey Depicted As Overseer; North Ties CIA Chief To Range of Actions, Washington Post, July 9, 1987 (via Nexis pay service).
By that point, Casey had already made his deathbed confession of his role in Iran-Contra to Woodward that he reported later that year in VEIL:
The Secret Wars of the CIA 1981-1987
.

There are still people who maintain Casey's innocence, but from the perspective of 2004 I'd say Rather's reporting seems a lot more credible that the Reagan Administration's denials, wouldn't you?

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Friday, September 10, 2004

A Real News Media 

Via Nancy Richardson on Atrios, we get this link to Dan Rather on the evening news responding to attacks on the 60 Minutes story about Bush's service -- a story that was frankly rather mild considering the nature of the allegations.

The five minute tape is something special, and worth watching. Forget liberal media. Forget conservative media. This is the real news media. Rather does not indulge in the typical he said/she said reporting that defines television news in our era. He does not view his role as merely repeating the assertions of each "side", regardless of merit. Instead, Rather tells the story as he sees it: The story about Bush is correct, well substantiated and important, the documents are only part of the evidence for the story, the documents are authentic, the allegations that the documents are forgeries lack merit, and the motives of many of those contesting the documents are partisan.

That, ladies and gentlemen, is what the news is like when it is controlled by real newspeople.

Thank you, Dan Rather.

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No Child Left Behind Bait and Switch 

Mary and I received a letter today, as required by the No Child Left Behind Act ("NCLB"), to tell us that our son's school was failing -- or, more specifically, that while it met its overall "adequate yearly progress" score, it did not meet the Act's requirements in certain areas for African American, low income, and special needs students.

OK, so what does that mean to me?

This means the following to you:
1) Due to this situation, according to the Act, we must offer you the choice to transfer your child from [XYZ School] to a school in a neighboring community that has met all NCLB standards, at no cost to the student/family.
2) We have contacted every qualified school district in XYZ County about the possibility of accepting XYZ students choosing to transfer al ALL HAVE DECLINED TO ACCEPT OUR STUDENTS.
(Emphasis in original.)
Now, I don't particularly want to move my son from the neighborhood public school, but I do think we can chalk up another Bush promise that, upon examination, proves to be illusory.

(In fairness, I will say that the letter goes on to say that the school is taking various "steps to improve [its] academic achievement", but I'm skeptical that, without more money, that's anything other than sideways movement.)

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Email to ABC 

Dear ABC News,

I understand that your commentators on the morning news have been repeating the claim that typewriter superscript "th"s didn't exist on typewriters at the time the Killian memo(s) (cited by CBS) would have been written.

Before making such statements, you should at least have the journalistic integrity to do the 5 minutes of research it would take to find out the truth.

IBM Selectric typewriters did, indeed, have the capability of producing not only superscript "th"s, but proportional type, curled apostrophes, and many other features. You can find the manual for the Selectric Composer typewriter at the following website: http://ibmcomposer.org/docs/Selectric%20Composer%20Operations%20Manual.pdf

The memos may or may not be established to be genuine. However, having your commentators repeat ignorant statements about them is not journalism, it is scandalmongering.

Has it occurred to you that the purpose of questioning the authenticity of the documents themselves might be to create a tempest-in-a-teapot distraction from the fact that (regardless of these memos) there is new, undisputed evidence that Mr. Bush received preferential treatment to get into the National Guard and did not fulfill his obligations once he was in?

There are some stories that can only be reported as "he said/she said", because facts are not ascertainable. However, on an issue such as what typefaces or type styles were available in 1972 or 1973, the facts are easily ascertainable. It is your job to find out and report such facts.

UPDATE: I now no longer have any doubts as to the authenticity of the documents. If I were writing this again, I'd withdraw the "may or may not be established to be genuine" part above.

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Thursday, September 09, 2004

The Sharon Bush Situation 

Via Kos, Howard Kurtz reports that Sharon Bush denies being the source for Kitty Kelley's allegation that Bush used cocaine at Camp David during the Bush I Administration.

Given Sharon's denial, it is well to be cautious about accepting the veracity of this allegation. The accuracy of Kitty Kelley's work has been challenged long before she took on the Bushes, and one would think that cocaine use as recently as she alleges would have been difficult to conceal for so long.

Still, while I remain skeptical of Kelley's account, there is also reason for skepticism about Sharon's denial:

1. Sharon says, "When Kitty Kelley raised drug use at Camp David, I responded by saying something along the lines of, 'Who would say such a thing?'" What's interesting about that is that it corroborates Kelley's story that she has another source for the story and that she asked Bush for confirmation. (Of course, we still don't know who that source is, and it is not clear that we will.)

2. Sharon's meeting with Kelley is alleged to have taken place on April 1, 2003, during the midst of her divorce from Neil Bush. There is independent evidence that she was meeting with at least one other author during this time period to discuss a possible tell all book. See L. Grove, Notes on a Broken Marriage, Washington Post, April 22, 2003 ("Sharon met with author Julie McCarron in Houston on April 14 to explore writing a memoir of her life in America's premier political dynasty"). According to McCarron, "She wanted to write the story of . . . how a 'perfect' marriage can explode after 22 years . . . how she bought into the image of the perfect family, but couldn't cope when everyone in that family turned against her. The Bush family preached family values while she practiced them." Sharon's meeting with Kelley was contemporaneously reported.

3. Kurtz's account suggests that Doubleday has a corroborating witness in its editor, Peter Gethers, who spoke to Bush with Kelley the next day. However, it is unclear from Kurtz's article exactly what Gethers can confirm.

4. By April 21, Sharon's book deal fell through because, according to her publisher, "he bailed because of worries that Sharon had already spilled too much to Kitty Kelley". Sharon soon lost interest in writing a book when she reached a financial settlement with Neil.

5. The Bush folks do seem to have a way of getting to former insiders who have bad things to say about them. Remember John DiIulio?

All things considered, it's best to keep an open mind. I suspect we'll see more of the details get filled in one way or the other over the next week.

Please drop a comment if you have further reasons to conclude the allegations are either true or false.

UPDATE: Atrios reports there's already new evidence. The New York Daily News reports, "There was a third party at the lunch, an unimpeachable source who agreed to speak with us on condition of anonymity, who says Kelley's quotes are accurate."

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Wednesday, September 08, 2004

W Stands for Wimp 

Over at the Bush-Cheney04 blog, they're actually soliciting suggestions for what "W" stands for.

If you click on their link, you can email them your favorite W words... Like, say, Weasel, Worthless, Wrong, Warmonger, etc.

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The Zell Miller of Journalism 

In advance of Kitty Kelley's new book, the Republicans are sending out Ron Kessler, author of A Matter Of Character: Inside The White House Of George W. Bush, a biography listed on Bush's reading list that has a rather different view of Mr. Bush's character.

This morning I heard Kessler on NPR, which led the interview (and its web summary) with the assertion that "Kessler supported Al Gore in the 2000 election" but "plans to vote for Bush this year". Making the point that he voted for Gore in 2000 is clearly an important part of Kessler's strategy for establishing credibility, since he mentions it frequently.

Maybe he did vote for Gore. I don't know. But something was very wrong about his presentation. This was not a journalist reporting on a genuine, if positive, portrayal of Bush. Rather, he was simply spouting the same Republican talking points one would expect from a partisan talking head -- railing against the "liberal media", praising Bush as the CEO of the war on terror, citing Rice and Powell to disprove the straw man that Bush is a bigot without addressing the real issues of his position on affirmative action or the effect of his policies on people of color.

So, I wondered, how real was Kessler's support for Al Gore? I did a Nexis search and could not find a single contemporaneous public statement supporting Gore. However, I was able to find the following from December 2000:
LOU WATERS: ... How big a challenge is this now for the Bush people to get this in all done in time?

RON KESSLER: Well, obviously, it's truncated, so it will be more difficult, but the Bush people are very experienced: Cheney, of course, was chief of staff under the Ford administration, they're bringing in all these old hands from other Republican administrations, including Bush the father, and they all tend to be very well organized.

And it's quite a contrast from the Clinton White House, where they just couldn't get anything right; they had these, basically, kids who would eat pizza all night and talk to each other -- they couldn't even return telephone calls. And GSA was absolutely appalled: They couldn't assign telephone numbers, they couldn't get the parking spaces right.

And that continued all the way through out the Clinton administration, whereas the Bush people are quite different: They are really organized, they're businesslike. And that means not only that the president can be more effective, but also that people will respect the president more, people who deal with the white house: press, congressmen.


WATERS: They've been there before.

KESSLER: That's right.

WATERS: Yes -- now, this transition is going to be complicated by the fact that, while the transition is going on, President-elect Bush is going to have to heal these deep political wounds, and we're hearing the stories about Democrats must be included somehow in this administration. Will they be included, and does that, practically speaking, make a difference?

KESSLER: I think they will, because it seems that Bush has gone for professionals, for experienced people, and not for ideologues, and so that does include Democrats and, obviously, he is interested in unity, and I think you will see some of that.
CNN Today, December 14, 2000, Transcript # 00121404V13 (emphasis added).
That was the day after Gore conceded the election to Bush. As I recall the time, some Gore supporters were bitter, and some were resigned to the outcome, but there weren't too many cheerleading for Bush. It sure didn't take Kessler long to become one of them.

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Tuesday, September 07, 2004

Stating the Obvious 

It's that time of the week again -- David Brooks has to fill up 750 words. Today's revelation -- the terrorists who massacred hundreds of children at the Russian school in Beslan are evil. "[T]oo many people", Brooks says, are "glid[ing] over the perpetrators of this act and search[ing] for more conventional, more easily comprehensible targets for their rage", namely various failings of the Russian government.

Of course, the writers and politicians Brooks condemns know well the evil of the terrorists -- one could hardly follow the situation even in passing without seeing that in every factual account of what occurred. Denouncing the terrorists may be satisfying, but it will not make them go away. But an organized response may, or at least may help.

The fact that Chechen rebel groups have been targeting Russian civilians is no secret. This is not the first time the Russians have stormed a hostage situation and ended up with hundreds of dead. Almost two years ago, Mark Riebling and E.P. Eddy of the National Review argued that the Chechen siezure of a Moscow theater offered a warning of future attacks.

Under the circumstances, it seems like the press and the politicians are asking the right questions: What has the Russian government done to prevent terrorism? What will it do? What has it learned about how to handle hostage situations? In short, what are governments doing to protect their citizens?

Not coincidentally, those are the questions we should be asking about our own government. Condemning terrorists is the easy part (though it is certainly one of the things the government should do). The hard part is doing something about it -- and I am afraid that that is not happening.

UPDATE: Jesse at Pandagon has the same reaction to this piece.

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Saturday, September 04, 2004

With Friends Like These ... 

Apparently, attendees at the Islamic Society of North America convention were not impressed by a booth sponsored by Muslims for Bush. ("'Disgusting,' said one onlooker. 'Take that down,' said another.")

Who are the Muslims for Bush? Is it some grass-roots organization committed to the cause of Muslim-Americans? Well, not exactly.

It is an organization founded by the wife and son of Malik Hasan, a Bush pioneer who made his fortune in the HMO industry. Here's what PBS has to say about Dr. Hasan:

Dr. Hasan helped to form Qual-Med, a tiny HMO with 7,000 members in southern Colorado. He then started acquring other HMOs. As reported in George Anders' book "Health Against Wealth," after acquiring an HMO, Hasan would install an aggressive medical director with instructions to shrink the medical-loss ratio: "If an obstetrician wanted to keep a new mother in the hospital for a second or third day after delivery, Qual-Med directors would say no on the ground that it wasn't medically necessary. If an orthopedist wanted to order a second MRI, he was told no as well, on the same grounds."
Lovely.

Making a Killing has more:

Dr. Malik Hasan ... had the dubious distinction of making the Forbes magazine list of "overpaid" executives during the nineties, the group of corporate chieftains who "made out far better than shareholders since 1993." ...

Dr. Hasan also made no bones about profiting from the conservative's favorite health care idea, medical savings accounts. "We [for-profit managed care companies] would make out like bandits, but as a physician I have a serious concern about fragmenting the insurance pool…We are going into [MSAs] because these things are going to be a gold mine, let there be no doubt. They are a scam and we will get our share of that scam."
OK, so we know Hasan is with Bush in pushing medical savings accounts. But at least we can count on a health-care exec. like Dr. Hasan not to go crying to a "trial lawyer" when he has a problem -- unless of course he's not happy with investment losses at Goldman Sachs, or unless he hires Milberg Weiss, the biggest plaintiff's firm in the world, to pursue a derivative action against corporate management. Hasan v. CleveTrust Realty Investors, 729 F.2d 372 (6th Cir. 1984) (available on pay services).

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Thursday, September 02, 2004

Makin' Voters 

Back in college, when we were doing voter registration, we used to joke about "makin' voters," which is how the local Registrar of Voters referred to the process. When Fred and I were having our kids, we continued the making voters/making babies/bringing-more-Democrats-into-the-world kidding.

But in a piece in the Washington Post today, Phillip Longman isn't kidding. He tries to make the case that lower birthrates in Gore voting states and among more secular Americans, and higher birthrates in Bush voting states and among those who attend church regularly spell bad news for the future of the Democratic Party. He concludes, "If 'Metros' don't start having more children, America's future is 'Retro.'"

I am mostly going to skip over the aspect of his piece that is creepily reminiscent of eugenics arguments made in the early part of the 20th century, when native-born whites got worried about higher birthrates among all those immigrant types than among their own kind. Even in the late 40s, when my mother was in college, she was being told by professors at her supposedly liberal women's college that it was her and her classmates' duty, since they were the 'right sort,' to have lots of babies. [She did, by the way, and I'm not complaining, since I'm the last of them.]

Mainly, I want to focus on what is entirely missing from Longman's analysis: the fact that even if they have fallen, fertility rates are still higher among Hispanics, and that the U.S. does not now nor ever has relied solely on fertility for its population growth--Longman completely ignores immigration (not to mention internal migration between states).

First, fertility rates. Although, as Longman notes, "Between 1990 and 2002 fertility declined 14 percent among Mexican Americans and 24 percent among Puerto Ricans," he fails to mention (as Nedra Pickler would say) what the starting and ending points are. In fact, according to a recent report from Child Trends, "fertility rates among Hispanics ... increased from 95 per 1,000 in 1980 to 108 per 1,000 in 1990 before declining to 93 per 1,000 in 1998. In 2002, the fertility rate for Hispanic women was 94 per 1,000." This is compared to 57 per 1,000 women among non-Hispanic Whites in 2002. Put in terms of total fertility rates (TFR, the number of births that a hypothetical woman would have if she experienced throughout her childbearing years the age-specific birth rates observed in a given year), in 2001, TFR for non-Hispanic Whites was 1.843, and TFR for Hispanics was 2.748. (See the vital statistics report from the National Center for Health Statistics.) Sure, fertility has come down among Hispanics, but it's still well above replacement.

Next, even though fertility among second- and third-generation immigrants tends to become more similar to that of the longer-term population over time, we are constantly being refreshed with new immigrants, who still have relatively high rates. And what about immigration itself? Longman acts as if the only way that populations replace themselves in the future is through fertility. But obviously, in the United States, immigration has always been an incredibly important aspect of population growth and change. I am not going to try to do a state-by-state, voted-for-Gore-vs.-voted-for-Bush analysis, as he does with fertility, but overall, the major immigrant receiving states are blue. In those that are red (like Texas), Republicans have to resort to desperate gerrymandering to stave off the effects of immigration on their control of politics in the state.

So, fellow liberals, while I encourage you to make whoopie and have fun, I think there's very little need for you to "make voters"--unless you want to--out of some idea that we need to keep up with those baby-making machines in the Christian Coalition.





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Hundreds? Really? Hundreds? 

Can Bush's blog really be touting this as a success?

African Americans for Bush Rally in New York
Hundreds of African-American Republicans gathered together this afternoon for a coalition event to celebrate the President’s positive agenda....
Wow. Hundreds of people at a rally. It's not like every Republican activist is in town or anything.

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Wednesday, September 01, 2004

No Class 

I guess that show of fatherly loyalty to Mary that Cheney made the other day only goes so far.

If Uncle Karl said he couldn't have both of his daughters and their families join him on stage, shouldn't Dick just have skipped having anyone but his wife? What was with having just one daughter and her nice male husband and nice abundant and heterosexually spawned children?


Update: CNN just addressed this. They're saying that the Cheneys are saying that it was "Mary's choice" not to be up there on the stage. I'm not sure if I were Mary I'd want to get up in front of that crowd, either. But somehow I'm thinking it wasn't the freest choice--what if she had wanted to go up there?

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Liberal Media Strikes Again 

This morning's AP:

Testifying more than 30 years ago to Congress on behalf of Vietnam Veterans Against the War, Kerry detailed atrocities he said were committed by U.S. troops in Vietnam, including rapes, beheadings and random killings of civilians. Kerry has said he was referring to incidents witnessed by others.
Ron Fournier, Rove: Kerry Tarnished Vietnam Veterans (emphasis added).

The actual testimony:
"[S]everal months ago in Detroit, we had an investigation at which over 150 honorably discharged and many very highly decorated veterans testified to war crimes commtted in Southeast Asia ....

"They told the stories at times they had personally raped, cut off ears, cut off heads, tape wires from portable telephones to human genitals and turned up the power, cut off limbs, blown up bodies, randomly shot at civilians, razed villages in fashion reminiscent of Genghis Khan, shot cattle and dogs for fun, poisoned food stocks, and generally ravaged the country side of South Vietnam in addition to the normal ravage of war, and the normal and very particular ravaging which is done by the applied bombing power of this country." (Emphasis added.)
This is not a matter of what Kerry now says in his own defense. He could not have been clearer at the time that the allegations of atrocities were "incidents witnessed by others" and that he was not claiming personal knowledge.

The press needs to try harder to present the unconverted facts as more than just a matter of opinion.

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