P.L.A. - A Journal of Politics, Law and Autism

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Friday, August 08, 2003
Gorelick Must Resign the 9/11 Commision

Yesterday, I wrote about a number of “wise men” who have chosen to be members of law firms that accepted money to represent Saudi Arabia, Saudi individuals or interests in the law suit brought by the families of the 9/11 victims.

Mark Kleiman wonders whose side such persons are on. With regard to James Baker, Mark asks:
how hard is it to figure out that the former Secretary of State of the United States shouldn't be carrying water for the foreign power responsible for the largest massacre of Americans ever carried out?

The same can be asked of each of the “wise men” I named in the previous post as well as of former Attorney General Griffin Bell and former Solicitor General Seth Waxman both of whom are partners in firms representing the Saudis against the families of the 9/11 victims.

For Jamie Gorelick, answering a simple question is not enough. Gorelick is a litigation partner in the Washington law firm of Wilmer, Cutler & Pickering. Gorelick was formerly the number two person at the Department of Justice where she held the position of Deputy Attorney General of the United States.

According to Newsweek, Gorelick’s firm has agreed to represent Prince Mohammed al Faisal in the suit by the 9/11 families. The families contend that al Faisal has legal responsibility for the 9/11 attacks.

While her firm is representing Saudi interests against the 9/11 families, Ms. Gorelick is a member of the National Commission on Terrorist Attacks Upon The United States.

That commission, commonly referred to the “9/11 commission” is:
chartered to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. The Commission is also mandated to provide recommendations designed to guard against future attacks.

Given that the 9/11 families' suit charges the client of Ms. Gorelick’s firm with responsibility for the 9/11 attacks, it is completely inappropriate for her to remain on the 9/11 commission.

It is outrageous that her firm would have accepted the representation of a defendant in the suit while Gorelick sat on the commission. It is more outrageous that she did not immediately resign from the commission.

She must immediately resign the commission. No excuses. No delay.

Thursday, August 07, 2003
Pop Quiz

Today’s pop quiz has only three questions.
(a) Who was the most highly compensated corporate executive last year?

(b) How much money did he (you knew it was a he, right?) make?

(c) What did he do to receive that compensation?

The first two questions are easy. The highest paid corporate executive in 2002 was Jeffrey C. Barbakow, formerly the CEO of Tenet Healthcare. Mr. Barbakow received $116 million in compensation plus additional stock options potentially worth an additional $72 million.

Tenet Healthcare owns and operates hospitals. Tenet has revenues of about $14 billion and ranks 136th on the list of the largest U.S. companies.

The third question is a lot tougher. What exactly did Mr. Barbakow do to earn his fortune?

I will give you a hint. It cannot be that he was rewarded for the long term performance of Tenet stock as that stock has fallen from its 52 week high of $52.50 to its current price of $14.25.

Need another hint? It is not that he put Tenet into a strong financial position that remained unrecognized by the stock market as at least one ranking has placed Tenet in the bottom 10 of companies considered at risk for default or downgrade of its bonds.

Give up? Okay, I will give you the correct answer. To earn his massive compensation, Mr. Barbakow’s company owned and operated a hospital that performed heart operations on hundreds of patients who did not need the procedures and then defrauded the tax payers by billing Medicare and other government programs for the costs.

The New York Times has the story:
The Tenet Healthcare Corporation agreed yesterday to pay $54 million to resolve government accusations that doctors at a hospital in Northern California conducted unnecessary heart procedures and operations on hundreds of patients.

The settlement is the largest in a case involving what is known as medical necessity fraud, or billing government health programs for tests and treatments that the patient's condition did not require.

You get partial credit if your answer specified Medicare fraud but failed to mention the unnecessary heart operations. As the Times reports:
Tenet, based in Santa Barbara, Calif., also faces an investigation by the Justice Department into whether it artificially increased prices at some hospitals to inflate the payments it received under a complex formula used by Medicare.

So, how did you do on the quiz?

Job Creation Scorecard For July

When selling his latest round of tax cuts, President Bush made a specific promise with regard to job growth. Mr. Bush promised that the tax cut would create 510,000 more jobs this year than would otherwise have been created. The President signed the tax cut bill on May 28. The press release announcing the promise is here.

How many jobs must the economy create this year for Mr. Bush’s promise to come true?

Last February, the President’s Council of Economic advisors issued a statement that noted that in the absence of the tax cut, the economy would create 256,875 jobs per month. Thus, for the period of June through December of this year, the economy would create 1,798,125 jobs in the absence of a tax cut. With the promise of job creation through the tax cut, the economy would have to produce 2,308,125 jobs in the June through December period for Mr. Bush’s promise to come true. That works out to 384,687 jobs per month.

How is the promise holding up?

In June, the economy lost 30,000 jobs putting Mr. Bush 414,687 jobs behind pace.

In July, the economy lost 44,000 jobs. In the first two months after Mr. Bush promised the creation of 384,687 jobs per month, the economy has lost an average of 37,000 jobs. Instead of the creation of 769,374 jobs (the pace needed to make the promise come true), the economy has lost 74,000 jobs since the tax cut became law, putting Mr. Bush 841,374 jobs behind pace.

In order to meet the promise, the economy will now have to create 2,382,125 jobs in the last five months of the year. That works out to an average of 476,425 jobs per month.

For the purposes of comparison, during the 1990s, non-farm payrolls grew by 21 million jobs. That is an average of 175,000 new jobs per month.

My first post in this series is here.

See you next month for another update.

Wednesday, August 06, 2003
Blue Ribbon Panel

One of the most venerable traditions of Washington is the Blue Ribbon panel. Any issue that is too dangerous politically for both parties gets assigned to a Blue Ribbon Panel.

The Blue Ribbon Panel is usually made up of “wise men” of both parties. They are the adults. They do not partake in the usual partisan sniping. They know that every Blue Ribbon panelist will put the interests of the country ahead of any personal, financial or political interests. They have been around power and know the ways of power. They are not naïve. Administrations come and go but the wise men are always there. That is why they are known as “wise men.”

Let us say, hypothetically of course, that the issue of state sponsored support for terrorists, including the Al Qaeda operatives who executed the 9/11 attack, needed an investigation. Who should perform such a delicate task? A Blue Ribbon panel would be the appropriate selection. Who would serve on such a panel? The wise men, of course.

The panel should be completely bipartisan and should include people with experience in law, foreign policy, the legislative and executive branches and other areas. Who would fit those criteria?

Let’s pick a Blue Ribbon Panel for the investigation.

James Baker, formerly the Secretary of Treasury, Secretary of State and While House Chief of Staff is a natural. Every important Blue Ribbon Panel would be proud to have him as a member.

Sam Nunn, formerly Democratic Senator from Georgia and armed services expert is available. He is also a natural.

For legal advice, how about Lloyd Cutler, formerly While House Counsel for Bill Clinton and C. Boyden Gray who held the same post under George H. W. Bush?

Vernon Jordan, formerly fixer for Bill Clinton, and former Senator Lauch Faircloth, a confirmed Clinton hater, could be paired so as to satisfy both parties.

Similarly paired could be Tom Foley, Democratic former Speaker of the House and Bill Paxon, Republican former member of the House Leadership under speaker Gingrich.

That is only eight members and every panel should have an odd number just to prevent gridlock. I suspect that Robert Strauss, the uber-fixer who, although a Democrat, has served Republican Presidents would be acceptable to all.

Now we have our panel. That was easy wasn’t it?

There is one small problem. All of the members of the panel work for law firms that have taken large retainers to represent the Saudi Government, individual Saudis or Saudi interests in the suit filed by the families of the 9/11 victims. (Link via Tapped.)

Those wise men sure know how to put aside their own financial interests for the good of the American people, don’t they?

Promise Breakers

While I was at the beach, I overheard a political conversation between two men. The conversation was about how terrible it was that politicians break campaign promises. The younger man seemed to think that the most egregious example of campaign promise breaking was Bill Clinton’s failure to deliver a middle class tax cut in his initial economic package. The older man felt that the worst offender was George H. W. Bush decision to raise taxes after telling the American people to read his lips.

The similarity between those two examples of broken campaign promises was striking. In each case, the promise was made to overcome a preexisting image problem. In the 1988 campaign, George Bush 41 was plagued with the dual problems of not being seen as the heir to Ronald Reagan and also as being perceived as a bit of a wimp. The tax issue allowed Mr. Bush to claim a share of the Reagan legacy while Mr. Bush’s Clint Eastwood imitation addressed the wimp factor.

For Bill Clinton, the issues were different. Coming off the 1984 and 1988 election debacles, Democrats were perceived as out of the mainstream. Clinton was determined to drag the party back to the center by advocating “third way” policies. The middle class tax cut, along with “ending welfare as we know it,” support for the death penalty, criticism of the “brain dead policies” of both parties, and criticism of Sister Souljah were all central to Clinton’s establishment of a “third way” image.

Bush 41 and Clinton broke their respective campaign promises about taxes for the same reasons. In each case, they faced a serious fiscal problem. In each case, it would have been politically expedient to keep the promise. Both Clinton and Bush 41 decided that the right policy was to break the promise.

In both instances, while it was obvious that the administration would suffer political damage from the breaking of the promise, the Presidents felt that the country would be better off with a different policy than the one advocated in the campaign. Each chose the policy that he felt was best for the country even at the cost of his own political harm.

As he prepared to run for President in the 2000 election, George W. Bush faced a similar problem. Throughout much of the 1990s, the face of Republicanism was Newt Gingrich. Gingrich’s leadership of the GOP led (or was perceived to have led, depending on your perspective) to the rise of the politics of personal destruction, lack of bipartisanship, gridlock and a level of ugliness in our discourse that was troubling to the American people. The government shutdown, the alleged Clinton scandals and the partisan impeachment of a popular President are a few examples of that phenomenon. I am not attempting to assess responsibility for that perception but rather simply to note that any GOP Presidential candidate in 2000 had to deal with those issues.

George W. Bush dealt with those perceptions by declaring himself to be a “uniter not a divider.” He promised to “change the tone” in Washington and end the partisan bickering. In his convention acceptance
, George Bush noted that:
I have no stake in the bitter arguments of the last few years. I want to change the tone of Washington to one of civility and respect.

In the same speech, Bush noted his bipartisan credentials:
I worked with Republicans and Democrats to get things done. A bittersweet part of tonight is that someone is missing, the late Lt. Governor of Texas Bob Bullock. Bob was a Democrat, a crusty veteran of Texas politics, and my great friend.

He worked by my side, endorsed my re-election, and I know he is with me in spirit…

In his inaugural address, Bush said:
Today, we affirm a new commitment to live out our nation's promise through civility, courage, compassion and character.

America, at its best, matches a commitment to principle with a concern for civility. A civil society demands from each of us good will and respect, fair dealing and forgiveness.

Some seem to believe that our politics can afford to be petty because, in a time of peace, the stakes of our debates appear small…

We must live up to the calling we share. Civility is not a tactic or a sentiment. It is the determined choice of trust over cynicism, of community over chaos. And this commitment, if we keep it, is a way to shared accomplishment.

Mr. Bush has spoken of the importance of changing the tone in Washington. As Spinsanity reports, in April, 2001, Mr. Bush commented that:
I've been changing the tone in Washington, and that's very important because Washington can be a very acrimonious and bitter place where people are here for -- to further their own political agendas as opposed to doing what's right for the people...

If Mr. Bush intended to keep his promise to “change the tone” and be a “uniter not a divider,” how would he go about it? According to Mr. Bush and his advisors, there were at least three ways.

First, in an article published in 2001, Michael Barone reported on a conversation he had with Karl Rove:
In the run-up to the 1998 elections, I asked his chief political strategist, Karl Rove, whether Republicans would win the few seats they needed for a majority in the Texas House. We could, he said, but we probably won't, because we have a policy of not opposing Democrats who support us on one of our major issues.

With their control over the Republican Party and their ties to lobbyists, Mr. Bush and Mr. Rove could guarantee co-operative Democrats that they would not have serious opposition. Their goal was not to achieve narrow Republican majorities, but to create a situation where there would continue to be a reservoir of Democrats from whom they could win support. They can do the same in Washington.

Once he got to Washington, was Mr. Bush’s goal “not to achieve narrow Republican majorities, but to create a situation where there would continue to be a reservoir of Democrats from whom they could win support?”

Max Cleland might not think so. Cleland, a moderate Democratic Senator from Georgia supported Mr. Bush on his 2001 tax cut. He supported Mr. Bush’s war in Afghanistan. He supported Mr. Bush’s request for authorization for use of force in Iraq. Senator Cleland fit the Rove description of a “Democrat who support us” on not one but rather three major issues. Did George Bush follow his Texas model and not oppose Mr. Cleland’s reelection?

He did not. Mr. Bush hand picked Mr. Cleland’s opponent and then authorized a campaign in which Mr. Cleland’s patriotism (Cleland is a Viet Nam veteran who lost three limbs in service to his country) was questioned.

When faced with the choice of fulfilling his campaign promise to be a “uniter” and change the hyper partisan tone of Washington at the expense of perhaps losing a Senate seat that the GOP could otherwise have won, Mr. Bush put political expediency above fulfilling his pledge.

A second way Mr. Bush could have implemented a policy of “changing the tone” would be to show respect for people who disagree with him. In October of 2000, Mr. Bush said:
I'm going to be respectful for people who may disagree with me. I've had a record of doing so in the state of Texas. I've been a person that would -- been called a uniter not divider because I accepted some -- I accept other people's points of view.

Has Mr. Bush been respectful of people who disagree with him?

During the debate last fall over the creation of the Homeland Security Department, a dispute arose as to whether or not employees of that department would have Civil Service protection. Democrats wanted the Civil Service rules to apply. Mr. Bush did not. Did Mr. Bush respect those with whom he disagreed?

According to the Washington Post, Mr. Bush’s response to opposition on the Homeland Security bill was to charge that Democrats did not care about the security of the American people:
As he seeks to boost Republican candidates in the midterm elections, President Bush is increasing his emphasis on terrorism and national security…

Four times in the past two days, Bush has suggested that Democrats do not care about national security, saying on Monday that the Democratic-controlled Senate is "not interested in the security of the American people." His remarks, intensifying a theme he introduced last month, were quickly seconded and disseminated by House Majority Whip Tom DeLay…

In other words, Mr. Bush chose to break his campaign promise to “change the tone” in order to advance his political prospects.

That is not an isolated example. When Democrats questioned Attorney General John Ashcroft on the need to curtail civil liberties in the wake of 9/11, Ashcroft showed little respect for differing views, remarking:
Your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.

A third way to implement a policy of “changing the tone” is to control the partisan urges on Mr. Bush’s side of the aisle. Mr. Bush has acknowledged the need to do so. For instance, at a 2001 RNC Gala, Mr. Bush said the following:
Changing the tone of our Nation's Capital hasn't been easy. I realize that in politics, old ways die hard. Washington at times has got a plenty sharp edge to it. The only thing I can do, and the only thing Dick Cheney and others in our administration can do is to control our own responses.

Has Mr. Bush controlled the responses of his administration and allies in an effort to “change the tone?” A few examples suggest that he has not.

Grover Norquist recently noted his position on changing the tone:
We are trying to change the tones in the state capitals - and turn them toward bitter nastiness and partisanship," said Grover Norquist, a leading Republican strategist, who heads a group called Americans for Tax Reform.

"Bipartisanship is another name for date rape," Norquist, a onetime adviser to former House Speaker Newt Gingrich, said, citing an axiom of House conservatives.

Mr. Bush has yet to discipline Mr. Norquist.

During the Florida recount, the civility of politics was interrupted by the Brooks Brothers Riot. As I have previously written:
The post-election battle for the Florida electoral votes is instructive. The Bush camp paid the expenses for a large delegation of congressional staffers and activists to go to Florida. While there, they instigated the “Brooks Brothers Riot” in which they stormed the election offices, shouted loudly and physically assaulted election officials. The Bush campaign, instead of rebuking their conduct, paid for a victory party.

Rewarding the rioters is not conduct that can fairly be described as “controlling our own responses” in an effort to change the tone.

A third example of the administration failing to control its own responses comes from Dick Cheney. I described it as follows:
The issue of whether or not to drill for oil in a protected wilderness in Alaska arose. Mr. Bush favored such drilling. Democrats largely opposed such drilling. A Republican-friendly group known as the Family Research Council began running television ads supporting the drilling in Senator Tom Daschle’s home state of South Dakota.

The ads compared Mr. Daschle to Saddam Hussein and ran pictures of both, side by side. The ad was ridiculous garbage…

Amidst that debate, Vice President Dick Cheney appeared on Meet the Press. Tim Russert ran one of the ads and asked Mr. Cheney, “That's a little over the line, isn't it?” ...

This was Mr. Cheney’s actual response:

CHENEY: Well, I'm not responsible for the ad, and you flashed it so fast, I didn't have a chance to read the copy.

Other examples abound. Mr. Bush could certainly halt Tom Delay’s effort to force mid-decade redistricting in Texas. That effort has involved the inappropriate use of the Homeland Security Department to track down Democratic lawmakers and efforts to arrest Democrats who opposed the plan. That drive for political advantage adds to the partisan acrimony. Mr. Bush tolerates Delay’s efforts because of potential political gain.

In the House of Representatives, Bill Thomas refuses to provide Democrats with time to read a ninety page piece of complex proposed legislation before forcing action on the bill. He then fails to hear a Democratic objection to a unanimous consent motion so as to prevent Democratic objections. Finally, he calls the cops in an effort to prevent Democrats from discussion their strategy. Those sort of high handed actions poison the political discourse and prevent bipartisanship. Mr. Bush could, with one phone call and a press release, denounce and halt such tactics. He does not do so in an effort to maintain political advantage.

There is perhaps no greater need for Presidential action to “change the tone” than in the area of judicial nominations. The experience of Robert Bork, Clarence Thomas, Ronnie White and a host of Clinton nominees has reduced the process of selection Federal Court judges to a partisan mud fest. The point is not to assess blame for that situation (I have my views on where the blame lies and you no doubt have yours) but rather to point out that if Mr. Bush planned to honor his campaign promise to change the tone, a good place to start would be in the area of judicial nominations.

There are a plethora of highly qualified mainstream conservative jurists who would garner 70+ Senate votes for confirmation. Mr. Bush could have tried to heal some wounds by restricting his nominees to those consensus candidates. He could also have re-nominated a judge like Ronnie White who was the victim of just the sort of partisan smear campaign that Mr. Bush claims to want to eliminate.

Instead of attempting to heal the wounds, Mr. Bush decided to use the nominating process to placate and shore up his base among social conservatives. He has chosen to nominate folks like Pryor, Estrada, Pickering and Owen knowing that such nominations will increase political rancor and decrease bipartisanship.

After three of those nominees were rejected by the then Democrat controlled Senate Judiciary committee, Mr. Bush re-nominated them, thereby guaranteeing a partisan fight.

Republican Senators have already changed the long standing rules on the right of individual Senators to use “blue slips” to prevent confirmation of Judges from their home states (a process used extensively to prevent the confirmation of Clinton appointed judges). The GOP is now even talking about employing the “nuclear option” to break the filibusters. The "nuclear option" consists of using parliamentary tricks to change the rules in the middle of the game in an effort to prevent the minority from using the filibuster against judicial nominees. It is widely recognized that such a move would end any hope of bipartisanship on any issue in the Senate.

Mr. Bush noted in 2000 how a “uniter, not a divider” would react to partisan differences:
I am someone who is a uniter, not a divider. I don't believe in group thought, pitting one group of people against another. And all that does is create kind of a huge political, you know, nightmare for people."

When Democrats oppose the Estrada nomination, Mr. Bush’s allies accuse them of being anti-Hispanic. When Democrats oppose the Pryor nomination, Mr. Bush’s friends accuse them of being Anti-Catholic. What happened to not believing in “group thought, pitting one group of people against another”? What happened to avoiding trying to “create… a huge political… nightmare for people”?

Changing the tone of judicial nominations would be hard. The acrimony has built up of a number of years and both sides feel that they have been treated unfairly. Judicial nominations are a hot button topic on both right and left. The hard feeling from those battles spill over to many other issues. The problem with hyper partisan nature of judicial nominations will not be solved soon or easily. It will never be solved without presidential leadership.

In 1999, George Bush discussed the role of leadership in ending the partisan bickering:
As Governor of this great state, I have proven I know how to lead. I know that a leader must clearly see a better tomorrow. A leader must make decisions based on principles. And a leader must be a uniter, not a divider.

With regard to judicial nominations, Mr. Bush could try being a leader who sees “a better tomorrow.” He could try to be “a uniter, not a divider.” To do so might cause some political difficulty with his base but is that not what being a leader is all about?

George Bush 41 and Bill Clinton were willing to break campaign promises and suffer political damage to steer a course they felt was best for the country. George W. Bush is unwilling to fulfill a campaign pledge that would improve the political discourse of the country if the cost includes any degree of political damage to him. Which is the greater sin?

Tuesday, August 05, 2003

TR of eRiposte has done a considerable amount of hard work developing a new site known as Compassiongate. TR describes the purpose of the new site:
My own goal with this site was to provide a means to collate information in a manner that makes it much easier for interested people to see what the administration is all about. I present the information in concise tabular form, with links to sources for people who want to read more details. I believe that my site, as it fills up, will be the most comprehensive information site on the Bush administration's "compassion", "moral clarity", "promises kept", and nominees/appointees. My hope is that my site will make it easier for students, everyday people, bloggers, information websites, and those in the media who actually care to understand what this administration is all about, to find what they are looking for and discover what they were unaware of.

The new site compiles information (with copious links) in TR’s usual tabular format. The first installments of Compassiongate concern Mr. Bush’s truthfulness during the 2000 election. For instance, TR notes that during the campaign, Bush’s
campaign material asserts that the cuts..."are especially focused on low and moderate income families." The proof? "Roughly $3 out of every $6 returned to taxpayers would finance changes that help low income families.”

Compassiongate then provides links to analysis of that claim by The Daily Howler, Citizens for Tax Justice, Issues 2000 and The New Republic.

For anyone interested in learning or writing about the Bush administration with a broader perspective than the day to day news, Compassiongate promises to be a great resource.


Jeanne D’Arc has moved Body and Soul to new digs. The look of the new site is as beautiful as her prose

TCMITS (The Common Man in the Street) has moved back to blogspot after problems with his ISP. His new address is actually his old address to which he has returned. The features of his site include a running total of the financial costs of the war in Iraq and a great collection of reference links such as searchable texts of the U.S. Constitution and the Bible. Oh, and by the way, Happy 50th Birthday David.

Please reset your bookmarks.

.Jeanne’s move reminds me that TypePad is now up and running.

I have been considering moving PLA. It would be nice to have functioning archives and software that consistently works.

My only reservation is ease of use. Blogger may not work often but it is rarely my fault that it is not working. I know how to publish text on Blogger (charts, tables, pictures, graphs and special effects are a different matter). I am severely technologically challenged and fear that if I move PLA, I will have difficulty with the new software. If any of you with Movable Type or TypePad experience have any advice, I would appreciate hearing from you by comment or email.

Monday, August 04, 2003
Back From The Beach

My family and I have returned from our beach vacation. Despite suffering from sunburn, jellyfish stings and lack of sleep, we all survived and are no worse for wear. Regular postings will begin again shortly.