The Libya Question

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I think I’m nearly alone on the left in believing the Libya question in last night’s debate was not a total win for President Obama. I think he could have been even stronger than he was in his own answer, where he talked about how seriously he takes the death of Ambassador Chris Stevens and others. After all, Mitt is by his own admission politicizing this, and it would be totally fair for Obama to call him out for dancing on the Ambassador’s grave.

I also think Candy Crowley got a moment of false neutral cold feet, when she said it took “about 2 weeks” for the White House to admit the protest was not a response to an anti-Muslim film. According to CNN, the last time Obama raised the video was on September 20.

Well, we’re still doing an investigation, and there are going to be different circumstances in different countries. And so I don’t want to speak to something until we have all the information. What we do know is that the natural protests that arose because of the outrage over the video were used as an excuse by extremists to see if they can also directly harm U.S. interests —

So Crowly’s idea of a fact check here was to fudge by 5 days. And even that was in the context of questions about the protests generally.

Before we start, before talking about education and its future, we would like to talk about something that is happening right now in recent news. As we know, at the present time, 1,000 people are trying to get into the embassy in Pakistan, and we have seen protests, anti-American protests in thousands of countries.

We know in Libya, four Americans were killed. We know now that Ambassador Chris Stevens warned about security days before he was killed. Many people want to know whether — if you expected so much anti-American sentiment in the Islamic world. And why wasn’t your administration better prepared with more security at our embassies on September 11?

Still, this “fact check” from John Dickerson is batshit crazy.

The president’s tall tales came during a debate over Libya. The administration’s story is changing almost daily about what happened, who knew what when, and who is going to take responsibility for it. The topic presents political peril for the president. He effectively took command, saying that all responsibility rested with him and that he would get to the bottom of who killed the four Americans, including the ambassador. He criticized Romney for using the issue to score political points and took umbrage at the suggestion that anyone in his administration would act politically. Then, he proceeded to act politically. That is, if you define acting politically as suggesting something that isn’t true is true for the purpose of saving your job.

Obama said, “The day after the attack, governor, I stood in the Rose Garden and I told the American people … that this was an act of terror.” Obama was trying to suggest that he had declared this a terrorist attack long before his administration actually did. For days and days afterward, administration officials would not claim it was a terrorist attack. U.N. Ambassador Susan Rice famously refused to call it such on Face the Nation. The president was trying to reset the timeline. If you look at the president’s statement in the Rose Garden, he does use that phrase, but it’s a throwaway cliché. Indeed, it arguably wasn’t about the attack at all, just a bromide about more general acts of terror. In any event, the president buried the lead in the tenth paragraph of his remarks. That’s why none of the papers at the time reported that he had characterized any part of the attack as having to do with terrorism. When Romney called him on it, the president wouldn’t answer. “Please proceed, governor,” he said, as if he were the moderator and not the fellow who was being called out. It was the verbal equivalent of putting your hands over your eyes and pretending no one will see you. [my emphasis and link]

Yes, this fetish with calling things terrorism has become a cliché. But that’s the point–the entire reason Mitt’s team has staked so much on it. Yet using the word precisely as Mitt is using is somehow invalidates it for Dickerson.

And for a journalist to suggest that it’s the President’s fault this wasn’t reported?

So maybe I am totally wrong about how well the Libya question will serve Obama. If reporters like Dickerson are now blaming the President because they didn’t report this well back in September, it must have been an important moment, right?

DOD to Give Penguin the WikiLeaks Treatment?

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As a number of outlets have reported, DOD has written a threatening letter to Matt Bissonnette, the Navy SEAL whose memoir comes out next week.

But I think they’re misunderstanding part of the nature of the threat (though Mark Zaid, a lawyer who has represented a lot of spooks in cases like this one, alludes to it here, which I’ll return to). Here are, in my opinion, the two most important parts of the letter. First, DOD’s General Counsel Jeh Johnson addressed it to Penguin’s General Counsel as the custodian for the pseudonymous writer he makes clear he knows the real identity of elsewhere in the letter.

Mr. “Mark Owen”

c/o Alexander Gigante, Esquire

General Counsel

Penguin Putnam, Inc.

That, by itself, is not a big deal. But it does mean Johnson knows Penguin’s GC will read this letter.

More importantly, here’s how Johnson ended the letter:

I write to formally advise you of your material breach and violation of your agreements, and to inform you that the Department is considering pursuing against you, and all those acting in concert with you, all remedies legally available to us in light of this situation. [my emphasis]

That is, DOD is also considering legal remedies against “those acting in concert” with Bissonnette.

As far as we know, the only people acting in concert with Bissonnette are at Penguin’s imprint of Dutton. Thus, as much as this is a threat to Bissonnette, it’s also a threat to Penguin.

Which would make sense because–as Zaid points out–the government has been trying to push the application of the Espionage Act to those sharing classified information since the AIPAC trial.

Mark Zaid, a lawyer who has represented a variety of former military and intelligence officials in disclosure and leak cases, said the Johnson letter looked like a signal that the Pentagon was “contemplating a test case against the publisher or media for disclosing classified information.”

Read more →

Publisher’s Shock and Awe

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As I mentioned yesterday, the Pentagon has now gotten a copy of Osama bin Laden kill team member Matt Bissonnette’s book, No Easy Day. They’re reviewing it for classified information.

So today, the publisher announced that it has almost doubled its print run–from 300,000 to 575,000–and moved up publication a week.

In response to a crush of media attention, criticism and consumers clamoring to buy the book, the publisher behind the first-hand account of the Navy SEALs raid that killed Osama bin Laden has decided to move up the release date to next Tuesday.

Dutton, the imprint of Penguin that acquired the book in secret, said that “No Easy Day,” which will appear under the pseudonym Mark Owen, will go on sale Sept. 4, a week ahead of the planned date, Sept. 11.

“The publisher now feels it is important to put ‘No Easy Day’ on sale and let the book speak for itself,” Dutton said in a statement.

[snip]

Christine Ball, a spokeswoman for Dutton, also said on Tuesday that the publisher had increased the planned print run to 575,000 hardcover copies from the original total, 300,000.

And while Dutton claims these moves are simply a response to the media attention, I’m guessing they’re primarily designed to make it harder for DOD to affect publication of the book.

Remember what happened to Anthony Shaffer when the Defense Intelligence Agency found sensitive information in his Operation Dark Heart after it had already been printed.

Defense Department officials are negotiating to buy and destroy all 10,000 copies of the first printing of an Afghan war memoir they say contains intelligence secrets, according to two people familiar with the dispute.

[snip]

Release of the book “could reasonably be expected to cause serious damage to national security,” Lt. Gen. Ronald L. Burgess Jr., the D.I.A. director, wrote in an Aug. 6 memorandum. He said reviewers at the Central Intelligence Agency, National Security Agency and United States Special Operations Command had all found classified information in the manuscript.

In that case, DOD paid $47,300 to take 200 passages out of fewer than 10,000 copies.

The upshot was that the Pentagon paid $47,300 in taxpayer money for the 9,500 books that constituted almost the entire first print run of the book and had the volumes destroyed Sept. 20, while the publisher, Thomas Dunne Books, an imprint of St. Martin’s Press, issued a second edition Sept. 24 with roughly 200 words or passages blacked out.

To do the equivalent now–particularly with the doubled print run–would be quite a bit more expensive. And DOD now has just a week to decide what, if anything, they’re going to do about someone completely bypassing their censorship system.

Memo To The Clueless Nepotistically Self Unaware Flexible Bag Of Mostly Water Known As Luke Russert

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Russert Nantucket Estate

………………..Russert Nantucket Estate……………….

Has there ever been a more self unaware little ball of unworthy entitled Beltway nepotism than Luke Russert? I ask that as an honest question, because it is quite possible the answer is no. The story of Luke, son of Tim, is mostly public record.

Let’s take a look at the latest from L’il Luke, humbly entitled:

Luke Russert: Like Me, Paul Ryan Is Driven By Personal Loss

Well, golly, you just know it is going to be an intellectual and cognitively aware barnburner piece from that, no?

Of course it is, because that is the searing literary talent of the one and only Luke Russert; progeny of the Wonder of Whiteboard, Tim Russert. Let us inspect Luke’s Hemmingwayesque prose:

I peppered the congressman with questions about the health care law and budget priorities for an interview a colleague would use on Nightly News. When we were done, we exchanged pleasantries and he got up to leave. After about 15 seconds, he came back in the room and asked me, “How old was your dad when he passed from heart disease?” I told him, “58.” He said, “Mine was 55. My grandfather and great-grandfather both died from heart issues in their 50s, too.” He then asked me if I was into fitness and inquired about my workout regimen. He told me to run more and that I needed to work up a sweat at least five days a week. We both joked about how preventative fish oil supplements had a bad aftertaste.

Oh, what personal pathos these two poor sons have seen. Luke, son of Tim, product of St. Alban’s Academy in Washington DC, was left with a mother who worked for Vanity Fair, an estate and mansion on Nantucket Island fit for a king and a sinecure at NBC.

Bootstraps baby, bootstraps.

And L’il Luke’s brother in hardscrabble upbringing, Paul Ryan? This common man of the people was born the son of a respected lawyer in a Wisconsin town known as Janesville and:

Mr. Ryan, the youngest of Paul M. and Betty Ryan’s four children, was born in 1970 and grew up in Janesville’s historic Courthouse Hill neighborhood…

Like Luke Russert’s traumatic childhood, Paul Ryan suffered such various hardships as being voted Prom King and “Biggest Brown-Noser” in high school.

Oh, the pain they must have suffered, the poor dears.

The smooth stylings of Luke Russert’s searing reportage continue: Read more →

Racial Profiling Is Wrong, Sometimes

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The NYT has a long article revealing that TSA officers in Boston were profiling people of color as part of its behavior detection program.

In interviews and internal complaints, officers from the Transportation Security Administration’s “behavior detection” program at Logan International Airport in Boston asserted that passengers who fit certain profiles — Hispanics traveling to Miami, for instance, or blacks wearing baseball caps backward — are much more likely to be stopped, searched and questioned for “suspicious” behavior.

“They just pull aside anyone who they don’t like the way they look — if they are black and have expensive clothes or jewelry, or if they are Hispanic,” said one white officer, who along with four others spoke with The New York Times on the condition of anonymity.

It’s an important article that deserves attention, particularly given the White House’s practice of refusing to let citizens use the White House’s own accountability mechanisms to complain about the TSA, as happened Friday when it took down its petition process just before the petition attained the signatures that would have elicited a White House response.

But the article dissolves into hilarity around about paragraphs 35 and 36, when the article quotes a noted civil libertarian assailing racial profiling.

Representative Peter T. King, a New York Republican who has pushed for more aggressive counterterrorism measures, said he was troubled by the reports of profiling in Boston.

“If it is going on, it is wrong and can’t be defended,” Mr. King said.

Peter King?!?! The NYT quotes Peter King worrying about racial profiling without noting that with King’s rabid support the NYPD has turned the Gray Lady’s own city in to the poster child for illegal racial profiling? Without noting that King has turned the House Homeland Security Committee into an instrument of racial profiling? C’mon, NYT, you can’t be unaware that these comments, from King, are not credible!

Or maybe they are. After all, since Wade Page’s attack on a Sikh temple brought increased focus on the threat represented by white supremacists, King has faced calls to hold hearings on the radicalization of white people, just like he held a never-ending series of hearings on the radicalization of Muslims. Maybe King has thought about how inappropriate it would be to suggest all white people–or even all white supremacists–might be terrorists. Maybe King has developed a new found hatred of racial profiling now that there’s good reason white people might be targeted.

But you’d think the NYT would want to explain why a local Congressman’s statements conflict so dramatically with his past actions.

Glenn Kessler Didn’t USED to Treat SEC Filings as Boilerplate

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As gobsmacked as I am that no one can seem to find the people running Bain Capital from 1999 to 2002, when Mitt Romney was officially listed as its CEO, Chairman, and President, I’m equally shocked by Glenn Kessler’s claims that SEC documents are not to be trusted.

Kessler’s scarequoted SEC documents

On Thursday, Kessler suggested SEC filings don’t mean what they say.

There appears to be some confusion about how partnerships are structured and managed, or what SEC documents mean. (Just because you are listed as an owner of shares does not mean you have a managerial role.)

Then on Friday, he mocked the journalistic convention that treated “SEC documents” (his scarequotes) as factual.

There is a journalistic convention that appears to place great weight on “SEC documents.” But these are public filings by companies, which usually means there are not great secrets hidden in them. The Fact Checker, in an earlier life covering Wall Street, spent many hours looking for jewels in SEC filings.

[snip]

We had examined many SEC documents related to Romney and Bain in January, and concluded that much of the language saying Romney was “sole stockholder, chairman of the board, chief executive officer, and president” was boilerplate that did not reveal whether he was actually managing Bain at the time. (For instance, there is no standard definition of a “chief executive,” securities law experts say, and there is no requirement for anyone to have any responsibilities even if they have that title.)

Trillions of dollars are traded based on what these documents say, but a purportedly respectable journalist who used to cover Wall Street says they’re just boilerplate.

Only, he didn’t used to say that.

As Kessler reminds his readers, he used to cover finance. So to see how he, as a finance reporter, treated SEC documents, I thought I’d review what he wrote during precisely the period Mitt’s corporate whereabouts are in such dispute, 1999 to 2002. Kessler covered finance at the WaPo from the time he moved there in 1998 until about May 2, 2002, when he started covering foreign affairs. Thus, Kessler stopped covering finance just weeks after the time Mitt resigned from the boards of Marriott and Staples (presumably Mitt’s severance deal with Bain was around the same time).

SEC filings, more SEC filings, and no boilerplate

It was an interesting time to cover finance, too. In addition to a slew of articles engaged in one-side, other-side journalism citing experts warning that Bush’s tax cuts might bring back deficit spending but Pete Domenici and Ari Flesicher saying they wouldn’t so he couldn’t really be sure, Kessler covered growing awareness about tax havens, the end of the Dot-Com bubble, the AOL Time-Warner merger, and Enron. And in a number of those stories he treated earnings reports and other SEC documents as transparent truth.

Kessler pointed to corporate earnings reports for a January 29,1999 story predicting the economy would begin to slow.

Corporate earnings are closely watched on Wall Street because, in a world of dreams, deals and wild bets, earnings are real; they are the equivalent of batting averages for baseball addicts. Corporate earnings also provide hints on the general direction of the economy, which is why some analysts remain downbeat about the economy in the coming year despite the string of positive earnings reports. [my emphasis]

And he looked at them in very close detail.

Individual corporate earnings reports also turn up nuggets of how companies have boosted their profits. Compaq Computer Corp., the world’s number two computer maker, said Wednesday that fourth-quarter earnings rose a better-than-expected 2.2 percent. Profits rose to 43 cents a share, compared with 42 cents in the same period of 1997. But tax credits from Compaq’s purchase of Digital Equipment Corp. last year significantly cut the company’s tax rate, boosting net income about 5 cents a share.

In a January 13, 2000 story explaining different estimates for the value of the AOL Time-Warner deal, Kessler reveals the WaPo was the only paper to look beyond stock price in its calculations; it included Time-Warner’s debt, presumably gleaned from SEC documents.

Read more →

The House Judiciary Committee Preens in Full Ignorance at Leaks Hearing

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The headline that has come out of yesterday’s House Judiciary Committee hearing on leaks is that the Committee may subpoena people. As US News correctly reports, one push for subpoenas came from a John Conyers ploy trying to call Republican members’ bluff; he basically asked how they could be sure who leaked the stories in question and if they were they should just subpoena those people to testify to the committee.

It’s a testament to the thin knowledge of these stories that none of the Republicans responded, “John Brennan.” But then, even if they had, the committee would quickly get into trouble trying to subpoena Brennan as National Security Advisors (and Deputy NSAs) have traditionally been excused from Congressional subpoena for deliberation reasons, a tradition reinforced by Bush’s approach with Condi Rice.

Ah well. I’m sure we’re going to have some amusing theater of Jim Sensenbrenner trying to force Conyers to come up with some names now.

The other big push for subpoenas, though, came from Trey Gowdy. Partly because he wanted to create an excuse to call a Special Prosecutor and partly because, just because, he was most interested in subpoenaing some journalists. And in spite of the way that former Assistant Attorney General Ken Wainstein patiently explained why there are good, national security, reasons why DOJ is hesitant to subpoena journalists, Gowdy wouldn’t let up.

But what concerned me more is that no one–not a single person on the House committee that oversees DOJ–explained that DOJ doesn’t need to subpoena journalists to find out who they’ve been talking to. They’ve given themselves the authority to get journalist call records in national security cases without Attorney General approval.

That’s a detail every member of the committee should know, particularly if they’re going to hold hearings about whether DOJ can adequately investigate leaks. And while I expect Trey Gowdy to be ignorant, it seems they all are ignorant of this detail.

There was another display of ignorance I find troubling for a different reason. Dan Lungren suggested that he learned of what we’re doing with StuxNet from David Sanger’s reports. He rightly noted that–as the Chair of the House Homeland Security Subcommittee on Cybersecurity–he ought to learn these things from the government, not the NYT. And while his ignorance of StuxNet’s escape may be due to the timing of his ascension to the Subcommittee Chair (most members of the Gang of Four, except Dianne Feinstein, would not have gotten briefed on early stages of StuxNet, when someone should have told the government what a boneheaded plan it was), the Subcommittee still should be aware that our own recklessness has made us vulnerable in dangerous new ways.

Perhaps the most telling detail of the hearing, though, came from retired Colonel Kenneth Allard. He was brought on, I guess, to label what we did with StuxNet an act of war (without, of course, considering whether that is the problem rather than the exposure that both Republican and Democratic Administrations are engaging in illegal war without telling anyone). In his comments, he went so far as to say that “What Mr. Sanger did is equivalent of having KGB operation run against White House.”

Someone had to accuse the journalists of being enemy spies.

But Allard’s statement reveals where all this comes from: personal pique against the NYT for coverage they’ve done on him. Not only did he complain that David Sanger’s publisher didn’t give the New York Journal of Books, for which he writes reviews, an advance copy, but also that the NYT reported on the scam the Pentagon set up to give select Generals and Colonels inside information to spin favorably on TV.

Third, I have personally experienced what it feels like when the NYT deliberately distorts national security information, even to the point of plagiarism. On April 20, 2008, the NYT published an inflammatory expose: “Behind Analysts, Pentagon’s Hidden Hand” by David Barstow. The Times’ article charged that over 70 retired officers, including me, had misused our positions while serving as military analysts with the broadcast and cable TV networks. Read more →

Our “Cooperation” with Yemen

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Since we killed Anwar al-Awlaki and especially since Abed Rabu Mansour Hadi has taken over as President of Yemen, anonymous counterterrorism officials have repeatedly boasted how good our counterterrorism cooperation with Yemen is.

But this interview between the editor of the Yemen Post, Hakim Almasmari, and TBIJ challenges that claim. First there’s the matter of prison escapes, a problem that has plagued Yemen since 9/11. 88 suspected AQAP members have escaped during Hadi’s rule.

Q: Do you anticipate any new stories to come out of these areas in the south now that al Qaeda has left?

HA: Because I believe that al-Qaeda wasn’t defeated and they evacuated, I do believe al-Qaeda will have many gains over the next couple of weeks. We will see gains from al-Qaeda over the next couple of weeks in return for their evacuation. Yesterday alone five senior members escaped a prison, a highly secured prison in Yemen. Two days ago, two suspected al-Qaeda militants escaped Aden prison. So it is going to get very dirty. Al-Qaeda needed to evacuate to give the government a good image, but in return they will be given their leaders or members released from prison. This will make al-Qaeda weaker today but stronger tomorrow.

Q: You think there was something underhand in these prison escapes?

HA: Yes, this is not just a random prison escape. Eighty-eight suspected al Qaeda militants have escaped prison over the last four months alone. It’s a strategy – President Hadi needs to be powerful, he needs the image of being a leader. And sometimes that could mean cooperating or coming to agreement with al Qaeda to evacuate, but in return have some of their members released and further dialogue continues under the table between the government and al Qaeda.

And the report that we’re not coordinating drone strikes with anyone in the Yemeni Defense Ministry suggests, at the least, we don’t trust them for operational security.

Q: How credible do you think reports are that Yemen Air Force jets are launching airstrikes rather than American drones?

HA: There is no way whatsoever that the Yemen Air Force is conducting all the air strikes. The Yemeni air force is weak and it is conducting some of the air strikes but they result in very little casualties. Eyewitnesses have confirmed that the missiles launched were US-made and US involvement was confirmed in many air strikes, especially in areas where the government has very little to no ground support.

It is worrying that the US drones strategy is increasing in Yemen and even more worrying that it is happening without any coordination with the Defense Ministry. We have talked to numerous Defense Ministry officials on this and they told us that only very very few ministry officials in Yemen know even details of the US drone strikes, which means that it happens in a very un-institutional manner. And the US is helping Yemen become more of a dictatorship rather than an institutional nation. By allowing the drone strikes and no one knowing about it, this way people cannot stand against it or approve it.

But then there’s the suggestion of a different kind of “cooperation:” the funding we give to Yemeni news outlets that make them hesitant to cover drone strikes in much detail.

Q: You often file more specific reports of drone strikes compared with your peers. For example reporting five strikes in a day when others report ‘many’. How are you able to be so specific?

HA: Generally Yemen media tries to avoid covering drone strikes, for one main reason. Those who avoid it are doing so because they do not want to cut the links between them and any US funds or support for certain media outlets or certain publications.

So between requesting Yemen keep a critical journalist imprisoned (about the only one who, it seems, doesn’t end up escaping Yemeni prisons) and leading other journalists to hesitate before covering drones, the US has done a fair amount to limit coverage.

But that doesn’t seem to result in a Yemeni government we trust to wage the war against AQAP.

Withholding the Tax Decision: SCOTUSblog on the ObamaCare Decision

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Having served as the liveblog link to a widely-anticipated court decision myself, I probably read Tom Goldstein’s tick-tock of how the decision got reported differently than others. Most interesting for me?

SCOTUSblog is not credentialed to cover SCOTUS

Goldstein describes how most major news outlets as well as the White House listened in on a conference call SCOTUSblog had to discuss the ruling as it came out. He notes that Fox managed to correct its incorrect initial reporting because Megyn Kelly was watching SCOTUSblog. He describes other news outlets–like NPR–citing SCOTUSblog as their source.

And yet, even with all those people relying on SCOTUSblog for coverage of the decision (and all other decisions), SCOTUSblog is not credentialed to cover the court.

The Supreme Court will not grant SCOTUSblog a press credential.  Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston.  There are six other members of our team nearby, running nine computers on eight separate Internet connections.

I’m curious what the justification for this stance is. Does the Court care more about its prestige than ensuring that what amounts to its own newswire be able to report quickly and accurately?

SCOTUS decided not to email the decision

Perhaps that’s the case. After all, SCOTUS also decided not to email the decision to reporters (and the parties to the case), though they have done so in the past.

The Court’s own technical staff prepares to load the opinion on to the Court’s website.  In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced.  But now it relies only on its website, where opinions are released approximately two minutes later.  The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.

But it does.  At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever.  It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling.  And millions of people are now on the site anxiously looking for the decision.  They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again.  In the face of the crushing demand, the Court cannot publish its own decision.

The opinion will not appear on the website for a half-hour.  So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

Aside from being a boneheaded technical decision, it is, again, a statement about the philosophy of information at the Court. Why insist that the decision go through those physically at the Court, where people have little space or time for close reading?

Who hacked SCOTUSblog?

And here’s the bit that has me most intrigued. When we covered the Libby trial, we were hounded by denial of service attacks, including on verdict day–though we were also operating on a less stable system with almost no staff and little time to prepare for the technical demands of the coverage, which I think made the attacks rewarding.

Plus, it wasn’t surprising someone would attack FDL during the Libby case; because we served as the wire service for the trial, and because we didn’t unquestioningly repeat whatever Barbara Comstock claimed, we ended up undermining Liibby’s defense team’s best efforts at spin. So I’ve always assumed our DNS hackers were conservatives trying to cut off our coverage, leaving the more favorable Libby spin by default.

So it made sense that we were getting attacked.

But SCOTUSblog?

Our problem at the moment is that someone is trying to crash the blog.  At 10:00 exactly, hackers are launching a “distributed denial of service” attack with 1,000 page views per second to try and bring us down.  It does not work; our tremendous Deputy Manager Max Mallory has spent months augmenting our capacity, and the hackers give up after a few minutes.

The only one who–assuming good faith interest in reporting accurately–who I can imagine having a motive to hack SCOTUSblog are other media outlets who don’t want a competitor to draw off potential readers and viewers.

Alternately, there’s the possibility that someone wanted the decision reported inaccurately. Read more →

The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!