Tuesday, December 30, 2008

Obama Poolers: Bust a Move

Reading about some recent difficulties encountered by the press pool assigned to monitor President-elect Obama's doings in Hawaii leads me offer this advice: maybe next time the reporters need to bust a move.

As detailed here and here, on the day after Christmas, Obama left his rented Hawaii vacation house without warning to the group of photographers and reporters who were part of that day's "tight" or "protective" pool. He spent about an hour at this theme park with his daughters Malia and Sasha before the pool could be assembled (probably off of some fine beaches) and brought to the site.

The ditching of the press pool is certain to generate no perceptible measure of public outrage, but American history provides a litany of examples which illustrate why some members of the press ought to be in close proximity to the president whenever he travels.

While the ditching was troubling, I'm actually more concerned by a detail mentioned in passing in the pool report from Washington Post writer Philip Rucker. "Your pool was not allowed inside the park," Rucker reported. The pool reportedly spent about a half hour at the gates of the park before Obama emerged.

While any president (or president-elect) can "break the lid" and move faster than the pool can assemble, I can think of no reasonable explanation why the pool would not be allowed into an amusement park open to the general public. Of course, the pool would draw attention to Obama, but he and his Secret Service detail are not going to pass unnoticed anywhere these days. Indeed, per the Associated Press, tourists stopped the Obamas for snapshots.

I hope that there is no harbinger of the future in the fact that Obama's team thought the parking lot was adequate press access to his visit to an open theme park which can accomodate hundreds, if not thousands, of people. Does Mr. Obama expect to go to baseball games unaccompanied by his press pool? To the theater?

Poolers have one last-resort option when confronted with situations like the one in Oahu. While, for security reasons, one can't enter the pool willy-nilly, the pool is not a chain gang. Anyone can choose to leave. Unless I'm missing something, any of those in the pool could have handed in their pass and entered the park as an ordinary civilian. The Obama press staff would have probably freaked out. It's also not a risk-free move because anyone who pulls it may well be left behind for another movement or in the event of some kind of incident.

The decision is also more complicated for the newspaper, TV, and radio poolers, who are representing colleagues who might second guess the poolers' on-the-spot judgment. When I covered Senator Bob Dole's presidential campaign for ABC back in 1996, the producers from the major networks sometimes agreed to "protect" each other when campaign aides were frustrating our efforts to stay close to the candidate in public.

Tensions over that issue escalated, especially over the campaign's attempts to prevent the national networks from watching as local reporters attempted to interview Dole as he shook hands following speeches. When Dole visited the Eisenhower Museum in Abilene, Kan., (on August 9, 1996, according to this CNN story), a Dole campaign press aide tried to load me and my ABC pool crew into the motorcade while the former Senator was still perilously close to a local news crew and seemed to also be minutes away from shaking hands. I simply said we were staying put. The aide then attempted unsuccessfully to get the crew to ship out without me and the Secret Service to force us back in. Ultimately, we were told we were "out of the pool." The CBS crew was tracked down and saddled up into our slots in the motorcade. We made it back in the pool in the regular rotation.

The scramble to find a replacement crew reflected the fact that the campaign actually wants, even needs, a network camera along to record some of the pseudo-impromptu roadside stops that humanize a candidate.

The reasons for allowing the press to keep close watch on Obama when he's in public go beyond the obvious ones. Weird things happen out there on the road. (An example from the Dole era.) Sometimes tragic things happen not to the president, but others arround him, even in idyllic Hawaii. See here and here.

YouTube, cell-phone cameras and the like have made it less likely that some of these incidents would be comnpletely missed, but keeping a contingent of independent journalists in close proximity to the president still makes damn good sense. How this issue is handled will also be a measure of the transparency Obama insisted would be a hallmark of his presidency.

Signs of the Economic Apocalypse, Part 9

"Value is the New Luxury."
-- the 2009 marketing theme for the pricey Loews Hotels chain, per this e-mail.

Friday, December 19, 2008

Army Strong, but Not on Spelling

Usually, a misspelling on a clothing label is a dead giveaway that the item is a fake. But when the name brand is the U.S. Government's largest bureaucracy, the mistake might actually confirm the garment's authenticity.

Politico reported earlier this year on grumbling over a deal the U.S. Army did to put licensed Army 1st Infantry Division insigniawear in Sears stores. Well, the gear is in, just in time for Christmas. But there's a glitch.

Here's the label on the hooded Army sweatshirts in a Virginia Sears store:

Yeah, you read it right.

At a time when the Army is sensitive about increasing its reliance on high school dropouts, sending spelling errors from coast to coast is probably not the kind of holiday-season public relations message Army leaders were banking on when they signed the unusual clothing deal.

Of course, the garments are made in China. Again, not a strong P-R point, but perhaps an economic reality these days. The China sourcing might get the Army folks off the hook to a degree, except for this quote in David Rogers's Politico dispatch a few months back:

"Robyn Kures, a Los Angeles-based spokeswoman for the fashion launch, said 'every tag, label, design and final product sample must be approved by the Army before it is sold.'"


Monday, December 15, 2008

Welcome, Blagogate Skeptics

Welcome to the New York Times, which has belatedly joined those expressing skepticism about whether the charges leveled recently at Governor Rod Blaogjevich of Illinois are crimes, or merely ethically distasteful acts of political opportunism.

The story in Tuesday's Times questions whether prosecutor Patrick Fitgerald is seeking to criminalize all kinds of political horsetrading. A post on this blog six days ago raised similar issues and quoted several prominent attorneys who expressed similar doubts about the case.

Friday, December 12, 2008

Jewish Parents Lose Again in 15-year Quest to Claim Deduction Granted to Scientology

The 9th Circuit handed defeat today to a Jewish couple which has been trying for 15 years to claim tax deductions for a portion of the tuition they pay to Jewish schools attended by their children.

The fascinating part of Marla and Michael Sklar's crusade is that it is based in part on the Internal Revenue Service's decision to grant Scientologists deductions for 80% of fees they pay for auditing and training.

In a ruling issued more than ten months after the case was argued, the judges curtly dismissed the Sklars' argument that the Jewish schools and the Scientology training are similar. "We... conclude that tuition and fee payments to schools that provide secular and religious education as part of one curriculum are quite different from payments to organizations that provide exclusively religious services," Judge Kim Wardlaw wrote.

That conclusion could have been fleshed out a little more, in my view. The panel also offers no explanation I can see of why the Sklars were denied deductions for fees related solely to after-school classes in Jewish Oral Law, or Mishna. There the analogy to the Scientology "auditing and training" seems particularly strong.

The Justice Department is hailing the ruling here. Jeffrey Zuckerman, a Washington attorney who handled the case pro bono for the Sklars, did not respond to an e-mail asking for his reaction.

In any event, the panel viewed its decision as dictated to a great degree by a 9th Circuit decision in 2002, which addressed some of these issues but seemed to leave doors open for further challenges.

A witty concurring opinion from Judge Silverman in that case famously began this way: "Why is Scientology training different from all other religious training? We should decline the invitation to answer that question."

I attended the oral arguments in this case in February. The panel was openly hostile to the government and seemed inclined, at a minimum, to send the case back down for discovery of the precise details of the Scientology deduction rules. The Sklars were never permitted to see that policy.

Like the earlier panel, the panel which wrote today did seem highly skeptical of the alleged IRS policy toward Scientology, stopping just short of calling the deduction unconstitutional. That policy grew out of the settlement of a vast array of litigation between Scientology and the IRS. The panel which wrote today adopted the earlier panel's conclusion that giving the Sklars (and all taxpayers who pay for religious education) a preference that Scientologists allegedly get would only compound the violation of the Establishment Clause.

What was left up in the air today is who has the power to challenge the IRS's deal with the Scientologists. An ordinary taxpayer once might have had standing to do that, but the Supreme Court did away with that in this kind of case back in 2007. See here. It now looks like the alleged unconstitutionality of the Scientologists' tax deal may be one of those government actions which cannot be remedied in the courts.

Newsweek to Become Ideaweek?

A great closing line in a Wall Street Journal online story (sub. req.) today about employee buyouts at Newsweek magazine.

"The magazine, which is likely to adopt a more contemporary look with more photos, will continue its shift away from costly news-gathering toward a more provocative, idea-driven editorial approach."

Wonderful. More people generating "ideas" on a narrower and narrower base of facts.

Can everyone decide to sell farm equipment while fewer and fewer people actually farm? I guess we're about to find out.

Obama, Fitzgerald Headed for Clash?

Seems to me that President-Elect Obama and U.S. Attorney Patrick Fitzgerald are headed for a clash over the immediacy of the public's right to know.

Obama vowed Thursday to make public "over the next few days" some sort of catalog of contacts between his campaign aides and Illinois Governor Rod Blagojevich, who was charged Tuesday with trying to auction the senate seat Obama vacated.

But Fitzgerald's M.O. has been to urge witnesses in his investigations to keep quiet about their testimony. "I would prefer for the integrity of the investigation it not be discussed," he told a news conference announcing the indictment in the unrelated Libby case back in 2005. In response to a question from yours truly, the prosecutor said he wasn't sure whether he would ask witnesses to keep quiet publicly after an indictment was returned.

There are already indications that Fitzgerald is asking witnesses in the Blagojevich case to keep mum. CNN reported Thursday night that the network's request for an interview with the Service Employees International Union, which is mentioned in wiretaps related to the case, was rejected. According to CNN, the union said it was withholding comment at the request of the U.S. Attorney's office.

So will Obama snub Fitzgerald by putting out details of his camp's contacts with the disgraced governor? We in the press tend to favor disclosure (though the Chicago Tribune compromised on that already here). The major papers are giving big play to Obama's vow to lay this all out in short order. Obama also claims to be a proponent of transparency. Still, I wouldn't be surprised if he reverses course and decides discretion is a better option right now.

After all, the Bush White House used Fitzgerald's request for silence to justify years of silence about the Libby case.

To be fair to Fitzgerald, he did make clear back in his 2005 Libby presser that grand jury witnesses have the right to disclose their own testimony. The prosecutor just said he urged them not to, which he seems to be doing again in the present case.

Rant: I'm somewhat skeptical about prosecutors' requests for public silence in these circumstances, particularly with preliminary charges already filed. The governor and his top aide have the right to investigate the prosecutors' claims and to talk with any witnesses who are willing to talk. I feel a prosecutor's request to a witness to keep quiet publicly could easily be taken as a request or suggestion not to talk to the defense, which is improper and has led to cases being dismissed. (See, e.g., here). That's the concern I was getting at in my questions to Fitzgerald back in '05.

Thursday, December 11, 2008

NPR Salaries: Raw Data

UPDATE: See below for a correction/clarification to this post

As NPR announces layoffs and program cancellations to fix a $23 million budget hole (see here and here), it might be useful to consult the network's tax filings to see what the highest paid employees are/were making.

The latest IRS Form 990 on NPR's Web site gives salaries for the year ending September 30, 2007.

Then-president of NPR Kevin Klose made $465,994 from the network and $151,375 from the NPR foundation for a total of $617,369.

Kenneth Stern, who served as CEO before leaving abruptly in March of this year, made $427,057.

The 2007 return showed 15 people at NPR with the title of vice president or senior vice president. Most made between about $190,000and $260,000. A page on NPR's Web site shows 14 current vice presidents.

NPR reported its five highest paid employees were:
1. Managing Editor Barbara Rehm, $383,139
2. All Things Considered host Robert Siegel, $350,288
3. Morning Edition host Renee Montagne, $332,160
4. Morning Edition host Steve Inskeep, $331,242
5. NPR afternoon programming director Richard L. Harris, $190,267.

The most eye-catching salary ever reported on an NPR tax form is probably the $505,132 paid to broadcaster Bob Edwards in FY2004, the year he was ousted as host of Morning Edition, quit, and went to XM Radio. He hosted his last NPR show in April, five months before the end of the fiscal year, so the half-million dollar salary (presumably including some kind of severance) seems to have been for just seven months work.

IRS rules require disclosure of the compensation of all officers and the top five rank-and-file employees. Since some NPR officers deferred compensation, the figures above include "benefit plan contributions" that take account of those earnings and some other benefits.

As someone who spent several summers interning in the newsroom at one of NPR's best stations (WBUR-FM in Boston), I think a lot of meagerly paid reporters and staffers at local NPR affiliates would find some of these salaries staggering. On the other hand, they are surely lower than those at commercial networks. I'm also a bit surprised at the big gap between the top three on-air talents (Siegel, Montagne, Inskeep) and the other reporters and anchors, who presumably make less than Harris.

I would think that any news story about layoffs and budget issues might want to include some of this information to give readers some data points as they digest the story.

UPDATE: The first version of this post identified the fifth most highly compensated employee at NPR (excluding officers of the company) as "science reporter Richard Harris." This was based on NPR's tax filing which described the No. 5 employee, Harris, as an on-air journalist, more specifically as a "senior host." Based on comments posted below and a phone call I just received from one of the parties involved, I now believe that the IRS filing's description of "Richard L. Harris" as "senior host" is inaccurate and that the Harris identified in the filing is actually an executive who oversees NPR's afternoon programming. So the science reporter Richard Harris should never have been mixed up in this post. Separately, some at NPR are dubious that the top five list filed with the IRS is accurate in other respects. I have an email into NPR seeking clarification on both points and will update as warranted.

UPDATE 2: An NPR spokeswoman says there is no "senior host" by the name of Richard L. Harris, contrary to the tax filing signed by NPR on July 8, 2008 and posted here. (jump to pdf page 54, statement 36)

Wednesday, December 10, 2008

Signs of the Economic Apocalypse, Part 8

As any regular NPR listener knows, "Silk is soy." But it's no longer organic, at least not all the time.

Starting in January, packages of Silk "that look much like our existing line" will no longer be organic, the manufacturer said in an e-mail to customers last night.

"At a time when all food costs are on the rise, the change allows us to keep our prices reasonable, so more people can afford to make Silk an everyday healthy choice," the e-mail said. (Doesn't that imply the cost of the organic is unreasonable?) In a nod to the trend of of buying locally produced food over organics, the company also noted that the new products would be made exclusively from North American soybeans.

I don't have much of a problem with the change, chiefly because I don't drink soy milk. Also, I have some doubts about whether organics really deliver what consumers think they're getting. In particular, I don't think consumers know the organic label does not signify any regular testing for pesticides. That's true even though purportedly organic products are regularly sourced from countries where toxic chemicals regularly contaminate groundwater. More on that here.

Fitz Pushes Envelope with Bonds-for-Editorial-Scalps Charge

It’s not terribly nice for a sitting governor to threaten to withhold financial assistance to a newspaper company because one of its outlets is calling for the governor’s impeachment. But is it a federal crime?

That’s one of the tricky questions posed by the case U.S. Attorney Patrick Fitzgerald unveiled yesterday against Illinois Governor Rod Blagojevich. Fitzgerald pushed the legal envelope when he charged that Blagojevich used his aides to solicit a bribe by telling the Tribune Company that a state-backed refinancing of its debt related to Wrigley Field would make more progress if the Chicago Tribune fired editorial writers who had sharply criticized the governor.

“It is novel. I can tell you that,” a former U.S. Attorney in Washington, D.C., Roscoe Howard, said of the newspaper-related bribery charge.

According to an FBI agent’s affidavit, Blagojevich’s wife, Patricia, could be heard in a wiretapped telephone call colorfully proposing that the governor’s aides “hold up that fucking Cubs shit….Fuck them.”

The preliminary charges filed against Blagojevich describe the proposed editorial board firings as a “thing of value” demanded from Tribune Co. Defendants in bribery prosecutions “are usually looking for money,” Mr. Howard said.

“It is kind of interesting as a legal issue whether the firing of certain editorial board members constitutes a ‘thing of value’ under the bribery statutes,” a law professor at Northwestern University in Chicago, Albert Alschuler, said. “There’s an obvious argument it is….The argument the other way is that reading the statute that way would make almost anything a ‘thing of value.’” Sexual favors have been held to be “things of value,” but several lawyers contacted for this article were unaware of any case addressing whether an editorial stance or news coverage met that test.

Alschuler said he expects prosecutors to argue that Blagojevich “taking into account anything other than the greater welfare of the people of the State of Illinois deprives the people of the State of Illinois of their right to honest services.” That stance is one that gives federal prosecutors broad authority to determine when personal interests have been put ahead of the public’s interest, a judgment that is open to dispute in the world of machine politics.

“Anytime you do a favor or anyone does a favor for you, it could be indicted as honest services fraud. It is a scary power,” Alschuler said. “So far, Fitzgerald has been able to get away with it.”

Some lawyers said Fitzgerald’s approach could criminalize some routine practices in Washington, such as the trading of a vote for a supporter’s appointment to a job, a vote for a presidential visit or fund-raiser, or even a vote on one bill or earmark for a vote on another. “How many deals are made every day where someone says, ‘I’ll vote for your bill, Mr. President, if you take my chief of staff and make him chief of staff in this office or that office’?” a former federal prosecutor, Victoria Toensing, asked.

“My objection to all of this is that federal prosecutors are deciding what is good government,” a law professor at Louisiana State University, John Baker, said. “These are accepted practices. If people want to reform that: fine, pass a law reforming it. Don’t let some federal prosecutor decide that after the fact.”

On the other hand, Alschuler said he was not personally troubled by the scope of the Tribune-related charges. “If it’s not criminal, certainly it ought to be,” he said.

Like any defendant, Blagojevich is entitled to have a jury decide whether it agrees with prosecutors about the “value” of the Tribune’s editorial stance. To convict, jurors would also have to find that the governor acted “corruptly” in making the proposal. Through his lawyer, Blagojevich has denied wrongdoing. “A lot of this is just politics,” the governor’s attorney, Sheldon Sorosky, said. The Tribune Co. issued a statement yesterday saying no one at the company tried to influence any internal staffing decisions.

Ultimately, any faults in the charge related to the Tribune could be immaterial, given the far more explosive and essentially separate charge that the senate seat being vacated by President-Elect Obama was being brazenly auctioned off by the Illinois governor. “This goes to an arrogance multiplied ten times over,” Toensing said. “I’m not a great fan of Fitzgerald, but this conduct seems be pretty out there, so whether he’s overreached on a count or two is not going to matter.”

In any event, it’s a tad humorous to see Fitzgerald riding to the Tribune’s rescue now after being faulted in at least two prior investigations for being inadequately sensitive to journalists’ concerns. Fitzgerald drew fire for seeking the jailing of a New York Times reporter, Judith Miller, in the CIA leak investigation which ultimately led to the conviction of Vice President Cheney’s chief of staff Lewis Libby. “I do not think that a reporter should be subpoenaed anything close to routinely. It should be an extraordinary case,” he said in 2005. In another less noticed case involving two Islamic charities with alleged ties to terrorist groups, Fitzgerald went after the phone records of Miller and another Times journalist, Philip Shenon. The prosecutor lost at the district court, but won at the 2nd Circuit. The Supreme Court refused to take the case.

Monday, December 8, 2008

Lesnik Gets Probation

The curious case of Abraham Lesnik, which I wrote about previously here and here, has ended with the ex-Boeing scientist being sentenced to three years probation, according to Lesnik's attorney. Lesnik was accused of using a thumb drive to bring about 2000 classified documents to his home.

The government wound up asking for a four-year prison term and had earlier threatened to seek more than five years. According to Lesnik's lawyer, Marc Harris, Judge Florence-Marie Cooper said at the sentencing hearing today that she was convinced that the physics expert neither transmitted nor intended to transmit the information he took home. Lesnik asserted he took the materials, some of them marked "top secret," simply to make it easier to work at home.

Harris says the prosecutor, Daniel Goodman, insisted that the government's briefs in the case were not intended to suggest that Lesnik made or planned an attempt to disclose the information.

Lesnik probably benefitted from his case being assigned to Judge Cooper, who saw first-hand the relatively lenient sentences the government agreed to in cases involving arguably far more serious breaches of the rules for handling classified information. I have in mind the cases involving senior FBI agent J.J. Smith and Katrina Leung, a longtime informant who later became a suspected double agent for China. Judge Cooper became a nightmare for the government when she dismissed the Leung case, citing a constitutional violation. That ruling led to the rather weak sentence Leung received. So, not the judge a prosecutor, especially on this kind of case, would want to draw.

Lesnik probably also benefitted from his attorneys' unusually exhaustive research into prior criminal cases involving mishandling of classified information.

I'm told press turnout for the hearing, in downtown Los Angeles, consisted of the Daily Journal legal newspaper and the City News Service, a local wire service. Apparently the Los Angeles Times, whose parent company filed for Chapter 11 bankruptcy today, couldn't be bothered to show up, nor could the national wire services or the national newspapers (if any still lay claim to that title).

Sunday, December 7, 2008

Ananchronistic Interference

My wife's iPhone is causing significant interference to the Christmas music my father-in-law is playing on his eight-track tape player. I somehow doubt Apple tested for this sort of thing. This situation strikes me as perilously close to disregarding the famous admonition in Ghostbusters not to cross the beams.

Friday, December 5, 2008

A scientist allegedly took home a giraffe’s worth of classified documents. Should he get four years in prison?

Former Boeing aerospace engineer Abraham Lesnik is in some very good company.

On Monday afternoon, the 62-year-old physicist is to go before a federal judge in Los Angeles to be sentenced for taking classified information home without permission. The list of those who have owned up to similar transgressions reads like a who’s who of the top ranks of America’s national security establishment. They include former attorney general Alberto Gonzales, former CIA director John Deutch, and former national security adviser Sandy Berger. Each of those powerful men escaped without jail time for their misdeeds. So why, then, is the Justice Department throwing the book at the lowly Boeing engineer by asking for a whopping four-year prison term?

The request is turning heads in the legal community, where some see it as wildly out of line with more modest punishments imposed on the high-flyers also caught being cavalier with America’s secrets. Some observers say links to Israel could also have heightened suspicions.

“The public knows about this perceived double standard between high level government officials with friends in high places and the nobodies within the contracting world,” a Washington lawyer who represents employees in disputes over security clearances, Mark Zaid, said. “You’d have to believe it’s something Congress would take a look at.”

“It’s pretty surprising,” one of Washington’s leading experts on classified information policy, Steven Aftergood of the Federation of American Scientists, said of the government’s proposed sentence. “There’s no indication of espionage or even of malice on the part of the defendant and, if that’s the case, then it’s a questionable move by the prosecution…I almost hope there’s something bad we don’t know about because otherwise this looks like a real overreach by the government.”

A probation officer assigned to Lesnik’s case seemed to agree. The official recommended a sentence of a year and a day for the scientist. Lesnik’s attorney, Marc Harris, is asking that his client be put on probation. “Our argument has been and is that these cases, historically, have not been criminally prosecuted and when they have they’ve resulted, almost uniformly, in probationary sentences,” he told me.

Lesnik’s case seems to have begun in a most unusual way: when he sued his employer in 2006 for confiscating a company laptop that had personal medical and financial information on it. In seeking a restraining order against Boeing, Lesnik noted that he was about to embark on a two-week family trip abroad. He’d already told the company he was headed to Israel. The laptop dispute led to at least two FBI searches of his Valley Village, Calif. home. FBI agents said hard drives and other storage devices there contained more than 2000 classified documents, including 400 marked “top secret,” though many were duplicates.

The government’s strongest argument against Lesnik is the sheer volume of data he copied. An unusual visual aid prosecutors submitted to Judge Florence Marie Cooper showed that the stack of classified documents Lesnik took home, if printed out, would have stood more than 21 feet high, exceeding the height of a 19-foot “adult giraffe.”

A thorough investigation of Lesnik, including intense surveillance of his home, turned up evidence that the Boeing employee had bank or investment accounts in Israel, Germany and Switzerland, even though his security clearance applications denied he had accounts abroad. (He said the money was from an inheritance.) Air Force analysts found his laptops had viruses and one “was attacked repeatedly from foreign IP addresses.” Ultimately, though, the FBI doesn’t seem to have found much, if anything, to indicate that Lesnik did more than arrogantly ignore the rules. “Although we have no reliable evidence that Lesnik transferred the classified information he possessed, that does not mean his actions did not jeopardize and even damage national security,” prosecutor Daniel Goodman wrote in a brief filed last month. He compared Lesnik’s conduct to that of a drunk driver who didn’t hit anyone or a methamphetamine lab operator whose house never exploded, but could have.

In July, Lesnik pled guilty to one felony count of retaining classified information without permission. He admitted using a USB “thumb drive” to take copies of eleven specific classified documents from Boeing, including a “top secret” memo “pertaining to national defense satellite threat mitigation.” Lesnik told the court he copied the materials so he could work on them at home. The Justice Department has been cagey about what project Lesnik was working on. However, an early filing in the case indicated he was part of a Boeing team working for America’s spy satellite agency, the National Reconnaissance Office.

The crime carries a potential of ten years in prison, but the defense and prosecution remain sharply at odds over an appropriate sentence. Lesnik’s lawyer cited a raft of cases where famous classified information violators skated by with a slap on the wrist, or less:

--Mr. Deutch, a CIA director under President Clinton, was found in 1996 to have electronic copies of 17,000 pages of classified documents, including “top secret” files, on unsecured computers at his homes in Maryland and Massachusetts. Some were on devices used to dial-up to “high-risk” sites on the Internet. He agreed in 2001 to plead guilty to a misdemeanor and pay a $5,000 fine, while receiving no jail time. However, on his last day in office and before the plea deal was filed, Mr. Clinton pardoned Mr. Deutch.

--Mr. Gonzales, an attorney general and White House Counsel under President Bush, took a variety of classified documents to his home without permission and stored other in a safe not authorized for the storage of “top secret/secure compartmented information.” Some of the notes pertained to the National Security Agency’s highly classified warrantless surveillance program. A Justice Department inspector general’s report issued in September 2008 found that the agency’s ex-chief “violated Department security regulations and procedures.” The department declined to file charges against Mr. Gonzales.

--And in a bizarre incident in 2003, Mr. Berger, a former national security adviser to Mr. Clinton, took top secret documents from the National Archives without permission and stashed them under a construction trailer nearby. He smuggled five highly sensitive documents from the archives to his office, tore some of the papers up and threw them away. He initially said the removal was “an honest mistake,” but later admitted taking the document intentionally. He pled guilty in 2005 to one misdemeanor count of unauthorized removal of classified information and was sentenced to two years probation and a $50,000 fine. He was stripped of his clearance for at least three years, prosecutors did not seek a jail term.

In a response filed last week, prosecutors rejected each of those analogies. “Comparisons are dangerous in this area because each case has a multitude of unique factors,” Mr. Goodman wrote. He said the presidential pardon means Mr. Deutch‘s predicament “does not inform any analysis of what charges were appropriate there or what sentence should be imposed in this case.” The prosecutor said Mr. Gonzales’s “mental state” differed from Lesnik’s. The government dismissed the analogy to Mr. Berger’s case by noting that he pled guilty to a misdemeanor, not a felony. However, the language of the two criminal statutes is essentially interchangeable.

Mr. Goodman also argued Lesnik deserves a tough sentence because he obstructed justice by deleting classified files and hiding disk drives in his home and a storage locker after he came under scrutiny. The defense counters that many defendants who pled guilty to strongly suspected of espionage or improper relationships with foreign agents got sentences of about a year or less.

Prosecutors prefer to compare Lesnik’s conduct to that of Kenneth Wayne Ford, a National Security Agency employee who took more than two boxes of classified documents from the office on his last day of work there. Ford claimed he was framed, but a jury convicted him in 2006 of taking classified information and lying to investigators. A judge gave him six years in prison.

Lawyers who track such cases say that Ford’s sentence is a wild aberration and that losing a job or a clearance is the most serious discipline faced by rank-and-file types who ignore or disobey secret information rules. “Every case I’ve ever come across involving negligent handling was dealt with administratively with a suspended clearance,” a Virginia-based attorney specializing in clearance disputes, Sheldon Cohen, said.

Lesnik’s request for leniency invokes his personal story as the child of Holocaust survivors. Shortly after World War II, he was born in an Austrian refugee camp. He came to the U.S. in 1962, studying at Columbia and the University of Chicago, before earning a doctorate in experimental high energy physics at Ohio State. In letters to the judge, family members describe Lesnik as an observant Jew, but one who only became so after one of his sons, now a rabbi, pulled him into it. There are few indications Lesnik had a particular passion for Israel, but the 2006 trip to the Jewish state and the undeclared bank account there probably drew extra scrutiny to the scientist, Mr. Zaid said.

“At times, Israel is one of the worst countries I’d want to see attached to my client. There is for sure an anti-Israel bias in the intelligence community; not anti-Jewish, but anti-Israel, “ the lawyer said. “To some, I think that (connection) infuriates more than cases involving our adversaries.”

Prosecutors argue that Lesnik’s conduct has done concrete harm because the government must now regard all the information he kept at home and on his personal laptop as permanently compromised. But this argument, if accepted, also magnifies the seriousness of what Berger, Gonzales, and Deutch did. Does the government now proceed as if everything those men took to their non-secure homes or offices is hopelessly lost and in enemy hands? If so, the gravity of what they did was widely understated at the time and the minor punishments they received should have triggered public outrage.

Critics say Lesnik’s case raises questions about why computers with top secret materials on them even have working USB slots for a thumb drive. Top secret documents are supposed to be accounted for on a copy by copy basis. So why can someone even do what Lesnik did and take electronic copies of documents en masse without apparent detection? Some also say an overly tough approach could discourage employees from reporting violations or suspicious activity.

“If no damage was done, education and training rather than punishment might be the proper response,” Mr. Aftergood said. “That should not be understood as complacency, rather it's a question of how do you maintain the allegiance of your cleared workforce.”

Lesnik has caught one break in recent months: his case was assigned to Judge Cooper, who has firsthand experience with the meager sentences imposed even in cases where there were strong indications that mishandling of secret information caused a major intelligence breach . The judge handled cases stemming from the scandal surrounding the FBI’s dealings with an informant who was a suspected double agent for China, Katrina Leung. An FBI agent who headed the China Foreign Intelligence Squad, J.J. Smith, admitted that he allowed her to peruse classified reports as he carried on a secret and illicit 20-year sexual relationship with her. Smith pled guilty to a single count of making a false statement about the affair. The government recommended the veteran FBI agent serve two months in prison. Judge Cooper sentenced him to three months home confinement.

Tuesday, December 2, 2008

Clinton-Obama Ethics Deal Has Merits, Shortcomings

The conflict-of-interest agreement which cleared the way for President-elect Obama to move forward with the nomination of Senator Clinton as secretary of state breaks new ground in many respects, but the deal to regulate and monitor President Clinton's activities actually falls short of some requirements set forth in legislation a Senate committee approved last year.

The pact hammered out by represenatives of President-elect Obama and President Clinton calls for the former president's foundation to name its future donors only on an annual basis, according to talking points provided on Saturday to Politico and the New York Times. The legislation moved to the Senate floor last year would have required quarterly reports. In addition, the proposed bill would have required the disclosure of the exact amount given by each donor of more than $1,250 each quarter to an open library and every donor of $200 or more to a planned library. As described to the press, and confirmed by a transition official who asked not to be named, the Obama-Clinton deal does not require such precision, nor does it call for disclosure of donors' addresses and occupations, which the Senate bill would have.

An unnamed Democratic official told Politico that the agreement "speaks to President Clinton's willingness to do more than what was asked of him." However, in some respects, Mr. Obama apparently asked less of Mr. Clinton than the proposed legislation would have.

Among the major concessions from Mr. Clinton were promises to separate part of his international aid effort, the Clinton Global Initiative, from the foundation which directly supports his presidential library in Little Rock, Ark.; to suspend all Clinton Global Initiative "annual events" overseas; to reject all foreign government donations to the initiative, and to advise the State Department in advance of the backers of his paid speeches and consultant work. The deal also goes further than the legislation by requiring the naming of small donors as well as past donors.

The substitution of annual reports for a quarterly ones is not trivial. Anyone who has tried to assess the activites of a nonprofit group based on annual 990 forms filed with the IRS knows the lag time devalues the information. Names without addresses and occupations also flummox efforts to identify donors. All in all, though, the deficiencies are not huge. Still, it's a bit puzzling that such a heavily-lawyered deal would be left open to any claim that it falls short of any reasonable yardstick, especially one that Mr. Obama seemed to endorse. Politico called the deal "remarkable," but it's also notable that the lawyers who represented Mr. Obama were unable in some areas to get the Clinton legal team to agree even to the baseline established by the Senate bill.

The talking points also make no mention of of Mr. Clinton's primary-season pledge to sever financial ties with investor Ron Burkle and a Dubai-related investment if Mrs. Clinton won the nomination. Does that promise to divest carry forward to her nomination or confirmation as secretary of state? Should it? A spokesman for Mr. Clinton could offer no update last night on plans for the former president's ties to Mr. Burkle's Yucaipa funds.

The Wall Street Journal estimated in January that Mr. Clinton could get a $20 million payout by unwinding his Yucaipa investments. However, that was before the market crash which hit many private equity investments even harder. If Mr. Clinton held off on selling his Yucaipa stakes, they may only be worth a fraction of their value earlier in the year.

In February 2008, Senate Democrats tried to pass the library fundraising legislation by unanimous consent. However, Senator Stevens, a Republican, objected, arguing that it was unfair to change the rules on President Bush in midstream. A version of the bill the House passed last year exempted President Clinton altogether, along with all presidents out of office for more than four years.

It's not clear precisely where Mr. Obama or Mrs. Clinton stood on the Senate bill, though both Democrats presumably cleared it for the attempted unanimous-consent passage. Mr. Obama is a member of the Homeland Security and Governmental Affairs Committee which approved the the Presidential Library Donation Reform Act on a voice vote in August 2007, but he was absent from the markup. An ethics plan he released in September of that year called for disclosure of "all donations to organizations affiliated with the president."

At a Democratic primary debate that same month, Mrs. Clinton was asked whether she supported full disclosure of library donations. She pointed to legislation she co-sponsored in 2001 that would have required an annual disclosure of all gifts or pledges of $5000 or more to a presidential library. That measure, which did not pass, would have affected only future presidents, not Mr. Clinton or President Bush.

For what it's worth, I did a TV interview on Fox Business a few weeks back talking about some of these issues. My general take was and is that the work the Clinton Foundation does on AIDS and development issues is valuable and it would be stupid to suspend it or substantially hamper it, especially when the U.S. Government is beyond bankrupt. If Mr. Clinton can get oil sheikhs to pay for anti-retrovirals for Africa, God bless him. Some of the concessions in the ethics deal, like ending his foundation's "annual events" outside the U.S. seem unnecessary to me. But, as I told Fox, "real-time" transparency about donations is the only cure to the conlficts issue raised by Mrs. Clinton's diplomatic post. I suspect that's where this will ultimately wind up by the end of the confirmation process, but we'll see.