BeldarBlog

Moon, Mars & beyond

Quick — name a king and queen of Spain from any era!

And when did they reign?  Pick at least one year when you know they were on the throne.

Ferdinand & Isabella, right?

Why are they the only pair of Spanish monarchs who jumped to mind?  They did lots of other things while they ruled Spain, some admirable and some definitely not.  For instance, they unified their kingdoms of Castile and Aragon, captured Granada from the Muslims, drove the Jews from Spain, sponsored and promoted the Spanish Inquisition, refined and expanded the mechanisms of Spanish government, began the long struggle with France for the control of Italy, and laid the foundations for what became for some time the most powerful empire in Europe.  But what are they commonly known for?  How are they remembered in history?

"In Fourteen-ninty-two, Columbus sailed the ocean blue ...." 

They sponsored the voyage that resulted in the discovery of the Americas by Europe — "the New World."

Five hundred years from now, John F. Kennedy will be remembered not for his handling of the Cuban Missile Crisis or his role in involving the US in Vietnam, but for setting the goal of putting men — American men — on the moon.

My reaction to President Bush's new vision for the American space program?

Yes, please!  More, please!  Faster, continuously — show that you mean it, and fund it adequately.  It is our destiny to do this — not just America's destiny, but mankind's.

I was born the month after Sputnik; I am almost exactly as old as the Space Age.  I dearly hope that I won't outlive it.

Licenses? We don' need no stinkin' licenses!

At least this careless physician's patients aren't likely to sue her:

A Travis County medical examiner who performed dozens of autopsies last year with a delinquent license said Thursday she never received a mailed postcard notifying her that the license needed renewal.

"If they indeed sent a postcard notifying us to renew online, it was not received by me, and I'm terribly sorry that it did not enter my thought process during that time," said Dr. Elizabeth Peacock, Travis County deputy medical examiner.

Peacock's annual medical license expired in February but wasn't renewed until June. She performed autopsies for 11 weeks with a delinquent license, including those for 11 of the 19 immigrants who died after being locked in a trailer found in Victoria.

The fat lady clears her throat on Texas redistricting: Supremes refuse to block Texas map pending appeal

The US Supreme Court's first action in the appeal of the three-judge panel's decision approving the Texas Legislature's 2003 Congressional redistricting — a case known as Session v. Perry before the panel, and now pending before the Supreme Court under the name Jackson v. Perry — has been to deny an emergency request for a stay of the three-judge panel's order pending its appeal, according to an Associated Press report republished by the Dallas Morning-News, the Houston Chronicle, and of course the ever-vigilant Howard Bashman's How Appealing legal blog.  From the Chron:

The Supreme Court refused today to block a hard-fought Republican redistricting plan in Texas that could cost Democrats as many as six seats in Congress.

The justices will announce later this year whether they will consider an appeal from congressional Democrats and others who claim the map dilutes minority voting strength. In the meantime, they rejected an emergency appeal that sought to stop the state from using the new boundaries in this year's elections.

As is unfortunately typical, this AP report gives a misimpression when it suggests that the US Supreme Court has discretion to refuse to hear the appeal on its merits.  Cases like this one — in contrast to most cases, which the Court decides on their merits only if it first grants a discretionary "petition for writ of certiorari" — are "direct appeals," taken "as of right" without first going through the normal intermediate appellate route, the United States Courts of Appeals.\note1/

The Supreme Court already has pending under submission a similar challenge to partisan gerrymandering from Pennsylvania in Vieth v. Jubelirer, which was argued on December 10, 2003.  If they followed their normal practices, immediately after that oral argument, the Justices presumably took a preliminary "conference vote" on whether to affirm the lower court's decision in Vieth — thereby presumably leaving intact the very permissive standards regarding partisan gerrymandering as established in Justice White's 1986 plurality opinion in Davis v. Bandemer — or whether to write some new restriction against partisan gerrymandering into the law.  The senior Justice in the provisional majority has presumably assigned himself or one of the other Justices voting with him to write a proposed majority opinion reflecting their decision in their post-argument conference.  Unless something very dramatic happens to change the voting line-up from the conference — rarely, but occasionally, a very persuasive proposed dissenting opinion can end up causing Justices to change their provisional votes — Vieth has already been effectively decided.  But only the Justices will know the result until all the proposed majority, dissenting, and concurring opinions have been circulated, final votes have been cast, and the final decision announced.

The three-judge panel in the Texas case ruled — quite correctly, I believe — that the Texas Legislature successfully stayed within the bounds permitted under Bandemer when it redistricted in 2003.  I also believe that if the US Supreme Court intends to write dramatic new law in Vieth that overrules Bandemer and substantially restricts partisan gerrymandering in any important way, then the same Justices who cast preliminary votes to that effect after oral arguments in Vieth almost certainly would have voted to grant the Texas plaintiffs' motion for an emergency stay pending appeal.  If they know the law is about to change in a way that would make what the Texas Legislature did in 2003 illegal, then they almost certainly would have voted to ensure that the 2004 elections in Texas would take place either under whatever new law they intend to announce in Vieth, or else under the pre-existing 2001 map — rather than permitting the 2004 elections to proceed under the Legislature's 2003 map that was approved by the three-judge panel applying the Bandemer plurality standard.

By contrast, if a majority of the Justices have already made the preliminary decision after oral argument in Vieth either to leave Justice White's plurality opinion in Bandemer substantially in place, or to replace it with an even less restrictive standard — for instance, a ruling that such issues are "nonjusticiable political questions," as Chief Justice Rehnquist and Justice O'Connor urged in their dissent in Bandemer — then those same Justices would have voted against staying the result of the three-judge panel's decision in Texas.  They would vote against staying the panel's ruling from Texas because they have already concluded that ruling will almost certainly ultimately be affirmed under the result they've already reached in their still-secret conference vote in Vieth.

Thus, my bottom-line reading of the tea leaves: Today's ruling makes it very unlikely that the Supreme Court is going to reverse the rulings that permitted partisan gerrymandering in either the Pennsylvania or Texas cases.

Another AP story that appears on the CBS News website includes this quote:

Gerry Hebert, who represents Texas congressional Democrats, said Friday: "I still remain confident that justice will prevail. It just didn't today."

Lawyer Hebert, who's been over-the-top in his public pronouncements since he first showed up in this fight, is going to have to have the fat lady actually sit on him before he gets the point, I think.  Earth to Gerry:  Justice just did prevail.

Likewise, the Austin American-Statesman has a quote with this bit of wishful thinking:

But Nina Perales, a lawyer for Hispanic civil rights groups challenging the map, said the court's decision not to grant a stay does not indicate how it might rule when full-blown appeals reach it.

"A stay is an extraordinary remedy, and not getting a stay doesn't really give you much of a clue on how the Supreme Court feels about your case," Perales said.

Normally I'd agree with Ms. Perales.  But the fact that Vieth was just argued last December 10th makes this far from the ordinary situation, and the stakes involved — a likely net swing of several Congressional seats — make it impossible that today's ruling was a casual or routine one by the Court.

------------------------------

\note1/I've explained this in more detail here. If you take a look at the docket sheet in Vieth, for instance, you'll see an entry dated June 27, 2003, which says "PROBABLE JURISDICTION NOTED." That's the Court confirming for the record that yes, this is a case they have to take as a direct appeal as-of-right. In ordinary cases in which the Supreme Court has discretionary authority whether to consider a case on its merits or not, that line would either say that the petitioner's petition for a writ of certiorari was "granted" or "denied" (as with the January 12, 2004, entry from a random case shown here, for example).

------------------------------

Update (Fri Jan 16 @ 8:30pm):  The Supreme Court's website has been updated to include this order (.pdf file, 2d page), which reads in full:  "The application for a stay or injunction pending appeal presented to Justice Scalia and by him referred to the Court is denied."  Justice Scalia presumably could have acted alone in deciding this emergency motion in his capacity as Circuit Justice for cases arising out of the Fifth Circuit (which includes Texas).  That he instead referred it to the entire Court is no surprise, however, given the nature of the case and its stakes.  That the entire Supreme Court considered and voted on the stay motion is yet another fact that bodes ill for the Dems.

------------------------------

Update (Sat. Jan. 17 @ wee-small-hours):  The Brennan Center has most of the briefing filed in the Supreme Court with regard to the stay application here in .pdf form (hat-tip to Rick Hasen's Election Law blog).

The El Paso Times quotes Texas state senator Eliot Shapleigh (D-El Paso):

"I fear for the Voting Rights Act in the future," Shapleigh said.

But Democrats now have few options, he said.

"Ours is a nation of laws. The Supreme Court has ruled. It's time to move on," Shapleigh said. "The lines drawn by the Legislature will be the lines for congressional races."

I found no surprises in other media reports from the San Antonio Express-News, Washington Post, and New York Times; and the Austin American-Statesman and Fort Worth Star-Telegram pretty much just regurgitate the AP story.  In particular, I haven't seen any major-media reports that recognize the possible significance yesterday's ruling in the Texas case may have for the Pennsylvania case as well.

------------------------------

Update (Sat. Jan 17 @ 5pm):  UCLA Law School Professor Stephen Bainbridge was kind enough to link this post with some encouraging words that will prompt me to toast him with the next good glass of wine I drink.

Prof. Rick Hasen has also been kind enough to link this post and give his take on my tea-leaf reading.  He think I am probably overstating the significance of the Court's ruling yesterday:

There could be factual issues that distinguish Vieth from the Texas case, meaning that the Justices could decide the Texas redistricting is permissible even under a new standard that might be crafted. Or, more likely, the Justices may not be willing to inject more uncertainty into the Texas redistricting process this year, leaving room to make changes for the 2006 elections if necessary.

That is not to say that the Court is in fact likely to give more teeth to partisan gerrymandering in Vieth. Reports from oral argument suggested the Court is likely to either solidify the toothless Bandemer standard or to hold partisan gerrymandering claims nonjusticiable altogether. Indeed, in reviewing the content of the 2004 election law supplement, I was reminded that the two Justices who wanted a hearing in a similar Michigan case — O'Lear v. Miller — were Justices Breyer and Stevens. It appears from the Vieth oral argument that they were the ones pushing for a stronger partisan gerrymandering standard. Probably they attracted two more votes to revisit the issue, but do not have the votes to overturn Bandemer.

In a comment to this post, GregV also follows up on a dialog he and I had been engaged in before yesterday's ruling on a comment to a post over on Charles Kuffner's excellent Off the Kuff blog.  (Yesterday was also the filing deadline, and Kuff also has a good update on who's filed where under the new map in light of yesterday's Supreme Court ruling.)  GregV's questions have certainly pushed me to look harder at the tea leaves; whether I'm actually seeing anything there or just imagining, I leave to you, gentle readers. 

But let's get our fingers busy counting votes:

For Scenario #1, you can postulate Stevens, Breyer, and Ginsburg as your core voters pushing for more federal court power to rein in hyperpartisan gerrymandering — God knows under what kind of standard, but something with more teeth than Bandemere.  It would stun me for Rehnquist, Scalia, or Thomas to buy into that.  Although O'Connor is frankly more likely to have changed her mind since 1986 than Rehnquist (both dissented in Bandemere, arguing that partisan gerrymandering is a nonjusticiable political question outside the ken of federal courts), remember that she's the only Justice who's ever been a state legislator (majority leader in the Arizona state senate); this ought to be something she hangs tough on, if there's anything she sees as a matter of absolute principle.  I certainly could imagine both Souter and Kennedy agreeing to sign on to something tougher than Bandemer in theory.  But if both of them had so voted at the conference after Vieth was argued, why wouldn't they have joined Stevens, Breyer, and Ginsburg to grant the emergency stay motion from Texas?

I tend to discount Scenario #2, simply "majoritizing" Bandemer, or a Scenario #4, as Prof. Hasen proposes, in which the Court remains split with no majority on anything.  Why would the Court bother to grant oral argument in Vieth if that's all they intended to do?  Unless someone leading the charge for one view or the other already believed they had the crucial fifth vote, why not just leave Bandemere in place?  They could have just summarily affirmed in Vieth and saved themselves the trouble (and in the case of Scenario #4, the embarrassment)!   

As for Prof. Hasen's suggestion that there are distinctions between Vieth and the Texas case which might explain why the Court would refuse to interfere in the Texas case while still possibly going beyond Bandemer's toothless restrictions in Vieth, I've now skimmed most of the briefing from both.  Prof. Hasen's a specialist in this field, and has probably read the briefing more thoroughly than I have.  But it seems to me that if anything, the Texas plaintiffs — deliberately and knowledgeably, because there are common counsel for the plaintiffs in the two cases (Paul M. Smith et al. of Jenner & Block) — tried to raise additional grounds in the Texas case, chiefly the "twice-in-a-decade" argument (which the three-judge panel, in my judgment, spent the first quarter of its opinion unanimously nailing to the wall and dissecting until it was dead, dead, dead!).   If a majority of the Court already intends to write new law in Vieth saying that really, really intense political gerrymandering is to be limited somehow, I frankly don't see how they could ignore the Texas case:  if you are going to demonize political gerrymandering, then Tom DeLay just had a star turn as your Darth Vader figure in the Lone Star State, and the panel opinion in Perry completely hinges on the court's fact-finding that partisan goals to create a durable, reliably Republican majority were the sole and overriding basis for the just-passed district map.

For Scenario #3:   If one assumes that O'Connor and Rehnquist haven't changed their minds since 1986, and that they've persuaded, say, Scalia and Thomas to their views on nonjusticiability — not a stretch to imagine at all — then they'd only need one more vote to get to five.  I figure there's no way that Stevens, Breyer, or Ginsburg could be persuaded of nonjusticiability — they've rarely met a claim they didn't like, nor hardly ever agreed to limit the powers of the federal courts vis-á-vis the states.  Nevertheless, If O'Connor and Rehnquist picked up either Souter or (more likely) Kennedy, that could be their fifth vote. 

So yes, based on yesterday's ruling in the Texas case, I'm tending toward predicting a 5/4 or 6/3 decision in Vieth overruling Justice White's plurality from Bandemer and holding that claims of pure hyperpartisan gerrymandering are nonjusticiable political questions — as opposed to claims based on race, which still are going to be red meat for the Voting Rights Act of 1965.  Simultaneously with their announcement of their decision in Vieth, the Texas case (Perry) will be summarily affirmed.

So there.  I'm all the way out on the limb!

Governor Howard Dean — Oath-Helper!

I don't think Democratic Presidential candidate Howard Dean has been shown to coddle wife-beaters.  But I disagree in this instance with a quartet of prominent bloggers who dismiss as meaningless a recent news report regarding an affidavit then-Gov. Dean filed in the divorce proceedings of a Vermont state trooper who later admitted to at least five separate occasions of spousal abuse.

What's been alleged, and what hasn't

Andrew Sullivan and Michael J. Totten both describe this ABC News article from yesterday — entitled "Dean's Trooper: What Did He Know About Abuse Allegations; When Did He Know It?" — as a "smear piece."  The inference, of course, is that this story must have been leaked/distributed by a rival Democratic campaign.  InstaPundit Glenn Reynolds says he doesn't see why ABC ran with the story.  And leftie blogger Atrios not only dismisses the ABC News story as a "pointless hit piece," but has two posts that attack Chris Vlasto, one of the three names listed as writers on the ABC News story.  (Atrios' commenters so far generally blame the Republicans for the "hit," rather than another Dem campaign.)

Certainly the formulaic Watergate-style headline suggests that Dean is somehow culpable.  ABC's lede is indeed an indictment-by-implication:

In his presidential campaign, and as governor of Vermont before that, Howard Dean has taken a tough, zero-tolerance stand on domestic violence, accusing the Bush administration of not being committed to the issue. Yet Dean said he had no idea that one of the men closest to him was repeatedly abusing his wife.

The New York Post has picked up the ABC story today with the shorter but more inflammatory headline, "Wife-Abuse Stunner," and this breathless lede:

Democrat Howard Dean last night faced a charge of intervening to help a wife abuser in a child-custody case, as polls showed his lead collapsing in both Iowa and New Hampshire.

But Totten concludes that "[a]ccording the article, Dean didn’t know anything," and Sully likewise opines that "this kind of irrelevant piece of guilt by association is truly beneath contempt." 

Totten's close reading of the ABC News story is mostly correct:  There's nothing in the ABC News story, nor in the NY Post piece, which would indicate that Dean's affidavit was untruthful, or that he had any hint that Trooper Madore would in fact turn out to be an spouse abuser — although the ABC News story does report that a friend of Madore's wife had phoned Dean before a few days after [ed.: corrected per commenter mwb's remark below, thanks!] he wrote his affidavit to warn that Madore was "not a good father," in response to which Dean hung up on her. 

Indeed, although it's not clear what involvement, if any, Dean had in the process, it appears that Madore was disciplined for offenses relating to his domestic abuse while Dean was still in office.  According to a story from August 19, 2003, in the Barre-Montpellier Times-Argus:

Madore was a State Police lieutenant and was head of former Gov. Howard Dean’s security detail. He was fired in December 2000 after an internal affairs investigation determined he had violated department rules.

According to court papers, the internal investigation determined he had lied under oath about extra-marital affairs during his divorce hearings, committed domestic assault and lied to investigators looking into the allegations.

Ironically — given its more inflammatory headline and more explicit linkage of the timing of the story to Dean's perhaps-faltering campaign hopes — the NY Post piece makes the real problem here more clear than did the ABC News story, so I'll quote at greater length from it:

ABC News reported that in 1997, Dean took the highly unusual step as Vermont governor of intervening in a custody case for state trooper Dennis Madore, who headed his security detail for nine years.

At the behest of Madore's lawyer, a close friend, Dean filed an affidavit claiming the cop was "a firm but gentle disciplinarian" and "a wonderful parent," the report said.

Dean has denied knowing of the abuse, but the wife's lawyer — former Vermont Attorney General Jerry Diamond — said that raises questions about Dean's judgment in inserting himself into the case.

The cop later admitted five separate instances of abuse, and his wife's lawyer said she suffers posttraumatic stress after "years of abuse in which she had been struck, had been pushed, shoved in front of the children."

The trooper's lawyer — Dean pal Phil White — was informed of the abuse charges more than two months before Dean intervened, the report said.

When Vermont's WCAX-TV asked about his role in 2001, Dean said he knew nothing about the charges and added, "I don't think it's my business as an employer to go rummaging through anybody's divorce papers."

The wife, Donna Madore, "was shocked that the governor would do something like that," said her lawyer, a self-described Dean supporter.

ABC said Dean — who as governor urged zero tolerance of domestic abuse — declined repeated requests to comment.

A few things jump out at me from the Post article:

• First, there's nothing necessarily fishy or inconsistent about the fact that the husband's lawyer, White, had been already been alerted to the abuse allegations before Dean submitted the affidavit.  The fact that allegations have been made is a long way short of allegations having been proved, and Madore's admissions apparently came substantially after Dean's affidavit.  Indeed, from the extremely brief quotes in the two news stories, it appears as though the affidavit related more to Madore's role as a parent than as a spouse.  Even if he suspected the spousal abuse allegations might be true, Madore's lawyer had no ethical or other obligation to refrain from submitting evidence that Madore was a good father.

• Second, the reference to WCAX-TV asking about Dean's role in 2001 strongly suggests this is "old news" that's indeed been recycled now by someone — and notwithstanding the paranoia of Atrios' commenters, given the timing, it was more likely one of Dean's political rivals in the Democratic Party.

• Third — and most importantly — the Post article does a better job than the original ABC News piece of nailing the significance of this whole episode.  It's not that this shows that Dean was being hypocritical in arguing for "zero tolerance" of spousal abuse while simultaneously vouching for a known wife-beater's character; the facts don't show that, at least so far.  Rather, what this shows is colossal bad judgment by then-Gov. Dean in injecting himself and his subjective (and wrong) opinion about the character of an employee into that employee's civil domestic relations matter.

Hence the great irony of Dean's comment that it's not an employer's business "to go rummaging through anybody's divorce papers."  He's right, of course.  But far less is it a sitting governor's business to be vouching for the character of one spouse over another in a divorce case!

Why governors ought not be oath-helpers

Obviously I'm curious about what was in the remainder of the three pages of the affidavit, and I'm only guessing at its overall contents. But my strong hunch, as a practicing trial lawyer, is that it was what we would call an "oath-helper affidavit."  Purely and simply, Dean was suggesting that Madore ought to be believed when he claimed to be a good father because Governor Howard Dean said so.

Ordinarily, "oath-helper" testimony is of minimal usefulness to a judge or jury trying to decide disputed facts, and indeed, its admissibility has been sharply curtailed by modern rules of evidence.  The main reason it's of limited value is that the oath-helper is very rarely in a position to give very much non-hearsay testimony about objective historical facts; the oath-helper's raw opinion is deemed to be unhelpful, and perhaps unfairly prejudicial, to the fact-finder who's trying to resolve disputes regarding those historical facts.

Here, for example, despite the fact that this trooper "headed Dean's security detail for nine years," there's no reason to think that they were close personal friends or that they had any other type of relationship that would give then-Gov. Dean a very strong basis for personal knowledge. I doubt, for instance, that the affidavit says, "I've eaten dinner with Trooper Madore and his wife an average of three times a week at their home, slept frequently on their couch, and become intimately acquainted with the most personal details of their marital relationship based on what I've seen with my own eyes and heard with my own ears."  If I'm wrong — if Gov. Dean somehow had a commanding view into the Madores' family life from somewhere other than the back seat of his limousine — then perhaps his testimony could have had considerable probative value in tending to disprove allegations of spousal abuse.  But that certainly doesn't fit with the image of Dean from other media reports, which describe him and his wife as very private, very cool, not anti-social but unsocial and unlikely to attend events that didn't involve their children. 

No, instead, Gov. Dean's affidavit was probably being offered for two reasons:

• The first possibility — the traditional oath-helper premise — is actually more innocuous:  The affidavit was being offered on the theory that Howard Dean's (mostly uninformed) opinion about his subordinate's character is especially valuable because, after all, lookit, Howard Dean's the governor!  Hey, and he's a doctor too!  (As if doctors can look into the hearts and minds of their limo drivers to detect hidden signs of spousal abuse, huh?)  This doesn't necessarily display any corruption or even insincerity.  Dean may well think that his opinion about others is somehow more valuable and accurate than other people's opinions; that just means he has a huge ego, which isn't exactly any secret.

• But the second reason why a lawyer might want to offer an affidavit like Gov. Dean's — a far more troublesome and powerful reason — would be to convey a veiled and implicit message to the trial judge: "Hey, do you know who you're dealing with here? The one guy in the State of Vermont who fills vacancies on the Vermont Supreme Court is telling you that he has a dog in this fight!  We want you to keep that in mind as you're deciding this case, Judge."

That, my friends, is at least an appearance of impropriety.  It's exactly why state governors ought not be doing what Howard Dean did in the Madore divorce case.  And Gov. Dean should have known better.  It would have been the wrong thing to do even if it had turned out that he was a good judge of character.  That Gov. Dean in fact turned out to be a poor judge of character only makes the stink stronger.

Whether the more devious and improper message was intended or not, I know I'd be absolutely livid if the governor of my state filed such an affidavit in a case I was handling. I absolutely agree with this quote from the wife's attorney, Jerry Diamond:

It was a highly unusual move. "I'm sure that there are very few cases on record where a governor might have done that," he told ABCNEWS.

So my conclusion is not that Gov. Dean supports wife-beaters, or doesn't care about spousal abuse. Rather, my conclusion is that this was an instance of very bad judgment when Howard Dean was governor.  Dean willingly assisted a lawyer for one of the litigants in using Gov. Dean's name and position in what appears to be an attempt to exert improper influence in a pending family-law case.

However, I do wonder if this incident, or others like it, were perhaps what oversensitized Dean into his "Dukakis-when-asked-about-Kitty's-rape" moment recently when he seemed reluctant to make a public statement about whether Osama bin Laden deserves the death penalty.  I seriously doubt that the Madore affair actually made Howard Dean doubt his own skills in drawing judgments about people, but it might well have made him a bit more shy about offering opinions about people (other than Dubya, of course) in public — to the point where, by trying to avoid an appearance of impropriety or prejudgment/interference, he ended up looking like a narrow-minded pedantic twit to the 99.999 percent of the public who is already fully convinced that hanging's too good for Osama.

----------------

Update (Jan 15 @ 3:45pm):  James Taranto of the Wall Street Journal's Best of the Web calls the ABC News article a "ludicrous hit piece that tries to paint Dean as condoning domestic violence," and suggests that "this is the sort of thing that can lead to a backlash against the press and in favor of the targeted candidate."  Certainly it's led to a backlash among all the bloggers I've linked so far from both the right, center, and left.  But I continue to think that — perhaps because of the sloppy way ABC News reported it and overhyped it — they're all missing the point of the episode.

----------------

Update (Jan 15 @ 4:45pm):  Mickey Kaus at Slate likewise ridicules ABC News:

I can't quite believe ABC ran with that Dean "affidavit" story (as Drudge tactfully calls it). There's no evidence presented that Dean knew of the actions of the former employee involved, certainly not before he filed his affidavit. Nor is it even really clear exactly what those actions were. Read it yourself. ABC (Mark Halperin, you too) should be ashamed. The network doesn't just report the story--it hypes the story (in the attempt to make it a story).  If I were Dean campaign manager Joe Trippi, I'd have tried to kick ABC off the plane too.

And:

The people who write ABC News' The Note must have thought the anti-Dean "affidavit" story by their own networks' "Investigative Unit" was as sleazy a piece of junk as everyone else did. They gave it about as little play as they could without courting dismissal--burying a one sentence link on page 8 of a 13 page report.... The upshot of this Pravda-like reading: The Note's Mark Halperin, the network's Political Director, thinks someone else in his organization has very bad judgment. He's right!

(Ellipsis in original.)  Very cute, Mr. Kaus can be.  But I still think (yes, I'm repeating here) he's missed the point.

----------------

Update (Jan 15 @ 5:15pm):  "Captain Ed" of "Captain's Quarter" definitely gets it, and explains it from a slightly different angle than I do, but very eloquently.  (Hat-tip to Hugh Hewitt for this pointer.)  And "Blogs for Bush" also has a short squib that appears to get it, too.

My quick take on the three numbered "issues" in Update II of Captain Ed's post:

1. Bingo, you're dead on.

2. I'd have to look at the specific language of the affidavit to conclude that Dean's testimony was on matters on which he lacked personal knowledge.  The only quotes in the popular press so far are the very general ones about the trooper's fitness as a parent, and they're phrased as matters of pure opinion without any allegation of specific facts that would, indeed, need to be based on personal knowledge. 

   Usually, with a cooperative witness who's willing to give a voluntary affidavit like this one, if the witness has more detailed personal knowledge, the interviewing lawyer will extract it and include it in the affidavit because it makes the testimony vastly more relevant and powerful (as compared to Dean's pure opinion, which is border-line admissible if that).  The failure of the ABC News story to quote any such specific facts makes me doubt that they were there, which in turn makes me doubt that Gov. Dean had a personal-knowledge basis for saying much if anything about this trooper either as a father or as a spouse.  But if the purpose was to use Dean's name and office — either for traditional oath-helper purposes or for the more ugly one I've postulated — then the lack of personal knowledge on Dean's part is no drawback.  It's not what he actually knew that was important to this lawyer, but rather, who Dean was.

3. Likewise, without seeing the affidavit in full and hearing more details of the telephone call than are reported in the press, I couldn't draw the conclusion that Dean had a duty to report the phone call.  If the caller had said, by contrast, "Trooper Madore punched his wife in the face at least three times and sent her to the emergency room," you might have a very different situation.  And it still hasn't been demonstrated that Madore was an abusive or bad father — his admissions are to instances of spousal, not child, abuse.

What's in Flat Howard's pocket?

I have to admit that I'm intrigued by an aspect of Flat Howard that the mainstream press seems to have missed.  What I really want to know is —

• Is that a banana in his left coat pocket, or is "Flat Howard" just really glad to see us? 

• Or is he emulating Al Gore and just confused about which pocket is which?

• Or is he just getting his fashion tips from Dennis Kucinich now?

Actually, I really don't want to know.

Rhetorical questions that are just too hard for the New York Times to answer

Today's NYT Sunday magazine has an interesting article about how the US occupying forces in Iraq are conducting counter-insurgency operations.  About midway through, it quotes "Ghazi Ajil al-Yawar, [a] deputy chief of one of the largest Sunni tribes and a member of the American-appointed Governing Council":

''The United States is using excessive power,'' he said when I visited his residence in Baghdad. ''They round up people in a very humiliating way, by putting bags over their faces in front of their families. In our society, this is like rape. The Americans are using collective punishment by jailing relatives. What is the difference from Saddam? They are demolishing houses now. They say they want to teach a lesson to the people. But when Timothy McVeigh was convicted in the bombing in Oklahoma City, was his family's home destroyed?''

Al-Yawar continued: ''You cannot win the hearts and minds of the people by using force. What's the difference between dictatorship and what's happening now?''

Well, duh. 

Putting bags over the faces of detainees is not rape.  It's also not attaching the detainees' genitals to car batteries; it's not feeding them feet-first through tree-limb shredders; it's not dropping their children out of flying helicopters; it's not cutting out their tongues and leaving them to bleed to death while tied to a stake in a public street; and it's not shooting them in the backs of their heads, tumbling their corpses into mass graves, and then charging their families for the costs of the slugs. 

And yes indeed, we routinely prosecute accomplices of terrorists in the US, including family members and friends — ask Terry Nichols, currently serving a life sentence for the support and assistance he gave McVeigh, or lesser-known accomplice Michael Fortier.  If McVeigh's mom had done what they did, she'd be in prison too.  And assets used in furtherance are indeed subject to forfeiture.

So "what's the difference" between us and Saddam?  The NYT seems to think this is a serious, difficult question. 

Can this reporter be so out-of-touch with reality that he failed to laugh in the face of the nutcase who asked this question?  Are his editors equally delusional?  What kind of thought processes could they have used in publishing this crap?  "Well, let's see:  we have bags over faces to help prevent escape attempts during transportation — that's roughly the moral equivalent of dropping nerve gas from helicopters to wipe out thousands of women and children, isn't it?  Yeah, let's just leave that question hanging — let the readers decide!"

Why do Dems dis the Brits?

I understand that — with the exception of Joe Lieberman — Democratic presidential candidates feel compelled to criticize President Bush's conduct of the Battle of Iraq as part of the War on Terrorism; and I understand that one of their consistent memes is that President Bush erred in failing to secure UN (or at least NATO) approval and active cooperation for our Iraq operations.

But I just become livid when I hear those candidates refer to us as having had a "phony coalition" in Iraq — either now, or earlier during the major combat operations.  (My immediate outrage is at John Kerry's use of that exact phrase on "Meet the Press" this morning; he's used "fraudulent coalition" and similar terms in other speeches.  Similarly, Clark claims there's "no coalition," and Dean claims "we should have gone in with a real coalition" but instead acted "unilaterally.")

Even if they made it clear in their comments that their focus was limited to those earlier major combat operations last spring — which might somewhat justify them effectively ignoring countries that supported our position but contributed no significant numbers of combat troops — how can these Democratic candidates continually piss on the graves of the brave British soldiers who fought shoulder to shoulder with our own?  How can they so carelessly trivialize and insult our best ally in the world?  Would it so dilute their anti-Bush message for them to insert a parenthetical — "I acknowledge that we were joined by the British; I acknowledge that Tony Blair not only agreed with George W. Bush, but committed his country's troops along with ours" — in characterizing the forces that went to war?