Politics & Policy

The Patriot Act Under Siege

Americans need to understand it before we add to it.

The Patriot Act’s curious voyage has finally drifted into the estuary where hysteria meets abject ignorance in a pronouncement by none less than David Stern, commissioner of the National Basketball Association. Asked if league meal ticket Kobe Bryant should play despite the cloud of sexual-assault charges, Stern responded to the Los Angeles Times with bumper-sticker eloquence: “Absolutely,” he blathered, because “[w]e don’t have a Patriot Act in the NBA. That means that you’re innocent until proven guilty.”

The NBA being our pop panacea, Stern will doubtless instruct more Americans about the Patriot Act than attorney general John Ashcroft reached during his recent whistle-stop tour. Even if Ashcroft could be heard above the din, it hardly matters. After two years of mindless scalding by the organized defense bar and its law-school and media allies, the AG is radioactive–they have made him Ken Starr II; the mere mention of his name provokes a Pavlovian reaction that overwhelms his message. That might be of little moment were this your average political catnip. But this is not about putting the Internet in every classroom (so your children don’t have to do all their Eminem downloading at home), or “a thousand points of light” (so you’ll know Republicans feel your pain too). It is about national security and what law enforcement must be able to do to ensure the order on which liberty depends.

With an election year on the horizon, and opportunists cynically turning “Patriot” into a codeword for oppressive overreach, it has become critically important to raise public awareness about what the Patriot Act is and why its provisions are so necessary–indeed, were such a no-brainer that they sailed through Congress with overwhelming bipartisan support. Educating the electorate about what Patriot actually does, moreover, is much more a priority for the Bush administration than dubious new initiatives like the three recently announced in conjunction with the September 11 commemoration. President Bush’s steadfastness in battling forces that would destroy our way of life, and his gimlet-eyed recognition that international terrorism is primarily a military rather than a criminal-justice problem, are his most alluring assets. But when new measures will not materially advance national security, it is foolish to ignore their grave downside: occasion for further vent by polemicists. Manipulating public opinion, they spread the fallacy that our fundamental rights are under assault–a fallacy that is fast becoming popular wisdom.

Chill, Mr. Stern: The Patriot Act, enacted about six weeks after the September 11 attacks, has utterly nothing to do with the presumption of innocence. That is still fully intact–as, plainly, is the First Amendment right to make a fool of oneself. Further, notwithstanding the ruckus of defense-bar caterwaulers; would-be presidential nominees playing fast and loose on the hustings; and the delusional Wahabbi lobby that reflexively casts every commonsense promotion of national security as an assault on Islam; Patriot has not resulted in star-chamber proceedings and secret detentions. The scores of people who were jailed immediately following the September 11 atrocities–i.e., before there was a Patriot Act–were held based on valid, then-existing law (and the misinformation jihad waged against those detentions could fill a book, let alone an essay). Finally, Patriot is not a transfer of power to latter-day Torquemadas at the Justice Department from the high-minded judiciary that is, we’re told, the last faithful guardian of our freedoms. Patriot is lushly deferential to judges, providing for review at every important juncture, even where constitutional separation-of-powers principles might well counsel otherwise.

So what, then, is the Patriot Act? Essentially, it serves two purposes. First, it removes obstacles that have for years prevented the law-enforcement and counterintelligence sides of the government from pooling information to confront the terrorist threat. Second, it ushers several long-established investigative techniques into the era of 21st-century technology, bringing them to bear on terrorism with the same effectiveness they have long exhibited in rooting out far-less-heinous crimes, such as drug trafficking and health-care fraud. Indeed, after nearly a decade of terrorist war on the United States beginning with the 1993 bombing of the World Trade Center and capped by that complex’s murderous destruction on September 11, 2001, most Americans who took the time to consider Patriot’s provisions would sensibly ask: Why did it take so long to do this?

INFORMATION SHARING

The information-sharing amendments in particular are long overdue. While it is a commonplace for international terrorists also to dabble in more prosaic crime (like financial fraud or identity theft), that is not always the case–and even when it is, the major threat they pose is to national security. The problem is that the general federal wiretapping law (usually called “Title III) is geared to investigate run-of-the-mill crime, not the anti-American activities of foreign terrorists and spies. To get a Title-III wiretap, an agent must show probable cause that crimes are being committed.

While essential, the alternative of wiretapping aimed at intelligence gathering was in a state of some disrepute in the post-Watergate era. Thus, in1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to clarify the legitimate parameters of such eavesdropping. FISA permits the government to bring information–often classified–to a special federal FISA court, which may then authorize wiretaps for counterintelligence purposes, provided there is probable cause that the target is an agent of a foreign power. (There is a respectable separation-of-powers argument to be made that Congress had no business giving federal courts a check on the executive branch’s conduct of foreign counterintelligence, but the after-clap of the Nixon excesses was no time to make it, and at this point, after a quarter century, FISA is now settled law.)

What happened if the FBI intelligence agents conducting FISA wiretaps chanced to hear conversations indicating that their targets were also committing ordinary crimes (as opposed to, say, espionage)? The statute as written posed no problem: The intelligence agents could simply pass that information to the criminal agents, who could then use the damning conversations in court to convict the FISA targets for those crimes. To normal people, this would naturally seem like a win-win situation–promoting both law enforcement (by prosecuting the guilty) and national security (by giving intelligence agents the additional leverage of a potential prosecution in seeking cooperation from a hostile foreign operative).

But lawyers are often not normal people. The defense bar and the courts soon began to invoke their all-purpose hypothetical bogeyman: the “corrupt agent.” (It matters not that experience shows there are about 5,000 honorable, dedicated agents for every corrupt one; it is the needle in the haystack that forever pricks at the tender sensibilities of the legal elites.) What if, they fretted, a corrupt agent who did not have enough evidence of crime to get a regular Title III wiretap were to feign national-security concerns as a pretext to avail himself of FISA’s intelligence wiretapping capability to conduct what was really a criminal investigation–in other words, to use FISA as an end around Title III and Fourth Amendment protections. Alas, in the unique Weltanschauung of lawyers looking to meddle with something that woks–here, FISA–the phantom corrupt agent is always conveniently irrational: unwilling simply to lie about the state of his proof to get a Title III, but hell-bent on lying about why he wants a wiretap to use FISA.

So courts steadily grafted onto FISA a so-called “primary purpose” test, requiring the government to establish that its real reason for seeking FISA surveillance was foreign counterintelligence, not criminal prosecution. Never mind that the FISA statute itself actually understood that FISA intercepts might well be used to prosecute at least espionage crimes. In 1995, this trend regrettably culminated in the Reno Justice Department’s issuance of procedural guidance designed to avoid running afoul of the “primary purpose” test. Henceforth, to avoid the appearance that decisions about criminal prosecution might be influenced by intelligence-gathering activities, DOJ’s Office of Intelligence Policy Review (OIPR) would act as a firewall presumptively barring intelligence agents from communicating with their law-enforcement colleagues. From a national-security perspective, this was hopelessly wrongheaded: A threat to public safety is objectively a function of what the terrorists are actually doing, a matter that has nothing to do with the subjective side issue of why agents may think they should be investigating. Nevertheless, in 1995, the side issue became the ballgame. And for habitués of the dark side, the best approach was not to be a clear-cut criminal or a clear-cut terrorist but to be a little of both–that way, one could run amok for weeks or months while prosecutors and investigators dithered over whether to use FISA or Title III, and over whether use of one might somehow taint evidence derived from the other.

If the foolishness of elevating the privacy interests of terrorists over the safety interests of the public was not manifest on its face, six years of terrorist attacks culminating in September 11, 2001, illuminated that the false dichotomy between law enforcement and counterintelligence had to be scotched. The Patriot Act does precisely that. It is no longer necessary for agents seeking a FISA wiretap to establish that foreign counterintelligence is the primary purpose for its application–it is enough to certify that it is “a significant purpose,” which is considerably less burdensome. More importantly, Patriot dismantles the OIPR firewall, expressly permitting intelligence agents conducting FISA surveillance to “consult with Federal law enforcement officers to coordinate efforts to investigate or protect against” terrorism and other hostile acts.

Remarkably, even after the September 11 attacks, the FISA court attempted to legislate onto FISA the 1995 DOJ procedural guidance–giving it the force of law, drastically undermining the Patriot amendments, and rebuffing Ashcroft’s worthy efforts to use his new tools. This insanity was happily reversed in late 2002, when the Justice Department successfully appealed to the Foreign Intelligence Court of Review–the first time such an appeal had ever been undertaken since FISA’s 1978 enactment.

The Patriot Act also promotes information sharing in the other direction. Criminal investigators are now permitted to share grand jury information with their intelligence counterparts. To promote cooperation and broad investigative latitude, grand jury material is generally kept secret, and investigators are restricted from sharing it, absent court permission, with other arms of government–such as those involved in civil litigation. Those barriers are plainly not appropriate when public safety is at risk. At a time of terrorist peril, it is simply imperative that the government’s right hand knows what its left hand is doing. National security depends on it.

INVESTIGATIVE TECHNIQUES

As is implicit in the wiretap developments described above, international terrorism cannot be carried out without covert communications between international operatives spread far and wide. Investigative infiltration of their communications networks–their e-mail and voice traffic–is obviously vital. Yet pre-9/11 law was patently inadequate for the task. For example, while terrorists who communicated by email over ever more archaic dial-up Internet connections ran some risk of having their contacts monitored, the increasing legions of cable Internet users did not. That’s because the laws were written at a time when cable service was understood to be programming (television shows, movies, etc.), not e-mail.

The government rarely, if ever, has need to invade the privacy of Americans’ viewing habits–indeed, even his ardent detractors haven’t yet wasted much energy on the image of Ashcroft fretting that someone, somewhere may be watching Sex and the City (although they have notoriously slandered him for purportedly using the Patriot Act to ponder our library checkouts). Consequently, pre-9/11 law made it a practical impossibility for government to obtain cable usage records without prior notice to the subscriber. Cable service, however, has dramatically evolved, and terrorists now use its global e-mail capability to exchange information. It makes no sense to have one set of rules for dial-up e-mail and another, utterly unworkable one for cable. Patriot rectified this incongruity, allowing government to obtain cable-based communications under the same criteria (i.e., by search warrant, court order, or subpoena) that apply to dial-up e-mail.

The need for investigators to keep up with the telecommunications revolution is hardly a new problem. It was not long ago that agents who sought wiretaps to probe everyday crimes were limited to an order that permitted interceptions over a specific phone. As technology advanced, criminals naturally began eluding wiretaps by using multiple cellular and other phones. It was thus neither surprising nor remotely offensive that, years back, agents were given better legal tools: namely, “roving” wiretaps that permitted continued interception even when the targets of their investigations switched phones. Yet, while roving taps were uncontroversially available in even minor drug and fraud investigations, they were not equally available in national security investigations. Patriot cures that anomaly.

Much of the act is similar. Patriot codifies and clarifies such investigative matters as the methods for lawful access by investigators to stored e-mail held by third parties (such as AOL and other service providers); lawful access to data about e-mail communications (not the substance of the conversations, but such details as when they occurred, pedigree information about the subscriber, and payment information that might provide valuable leads for identifying users who employ bogus names) on terms similar to what investigators have always enjoyed with respect to telephone communications; analogous extension to e-mail communications of so-called pen-register and trap-and-trace surveillance that has long been available in probing criminals’ telephone use; and appropriate investigative tools for computer crimes. On that last score, people very reasonably concerned about hacking attacks, for example, would likely be surprised to learn that, unlike comparatively innocuous offenses such as, say, gambling, violations of the federal computer fraud and abuse statute could not until very recently be investigated by wiretap. This was also true of crimes related to the fabrication of weapons of mass destruction. Patriot remedied these oversights.

As reified by the horror of 9/11, cross-border financing is the lifeblood of international terror attacks. Anyone outside a lunatic fringe would thus applaud the Patriot Act’s measures to close some gaping holes in money-laundering enforcement. It significantly crimped the ability of overseas terrorists to use foreign banks and nominees to avoid seizures of their funds; it extended the reach of civil money-laundering penalties–which loom large in the minds of financial institutions–against those who engage in transactions involving the proceeds of crime. And it further choked the funding channels by making currency smuggling itself (rather than the mere failure to file a report about the movement of currency into or out of the country) a crime, an initiative that bolsters the legal basis for seizing all, rather than a portion, of the smuggled funds.

Mention must be made of specious attacks on two aspects of Patriot. The first is the hissing over Section 215–the provision that allows investigators, pursuant to court order, access to library records, among numerous other types of business records that, from time immemorial, have been the bread and butter of criminal investigations. Of all the argumentum ad hominem aimed at Ashcroft, this is the most inane. The bookshelves of thoughtful people run the gamut from Dickens to Disney and most anything in between; seeing their library checkouts would tell us precious little about their propensity, if any, toward crime. After two decades in law enforcement, I can now break the secret: The government doesn’t care what you read (a fact that would be palpable to anyone who’d slogged through a Justice Department press release). Consequently, it should shock no one that, as the beleaguered Ashcroft recently reported, the government has not yet sought library records a single time under the Patriot Act.

So why have the provision at all? Because hard experience–won in the course of a string of terrorism trials since 1993–instructs us that it would be folly to preclude the government a priori from access to any broad categories of business record. Reading material, we now know, can be highly relevant in terrorism cases. People who build bombs tend to have books and pamphlets on bomb making. Terrorist leaders often possess literature announcing the animating principles of their organizations in a tone tailored to potential recruits. This type of evidence is a staple of virtually every terrorism investigation–both for what it suggests on its face and for the forensic significance of whose fingerprints may be on it. No one is convicted for having it–jurors are Americans too, and they’d not long stand for the odious notion that one should be imprisoned for the mere act of thinking.

When a defendant pleads “not guilty,” however, he is saying: “I put the government to its proof on every element of the crime, including that I acted with criminal purport.” Prosecutors must establish beyond a reasonable doubt not only that the terrorist engaged in acts but did so intending execrable consequences. If an accused says the precursor components he covertly amassed were for innocent use, is it not relevant that he has just borrowed a book that covers explosives manufacture? If he claims unfamiliarity with the tenets of violent jihad, should a jury be barred from learning that his paws have yellowed numerous publications on the subject? Such evidence was standard fare throughout Janet Reno’s tenure as attorney general–and rightly so.

The other passing Patriot fancy is the new infatuation in the House of Representatives with robotic compliance with a procedural rule for the execution of search warrants. This provision requires agents who conduct a search to leave behind for the criminal suspect notice that they have been there. In the majority of cases, this is perfectly reasonable; but rigorous adherence would be the death knell for such critical investigative tools as the so-called “sneak-and-peak” warrant. This has long allowed agents to search locations without taking anything, thereby gathering information but not tipping off the suspect and the co-conspirators who might be identified in the continuing investigation. Recognizing that, the Patriot Act empowers federal judges to permit delayed notice for good cause shown (e.g., endangerment of life, facilitation of flight, destruction of evidence, intimidation of witnesses, or similar substantial jeopardizing of investigations).

The outrage that has met this initiative is maddening, and a sad testament to how ineffective law enforcement has been in selling Patriot to the public. To begin with, the Fourth Amendment’s warrant requirement does not require notice at all. Notice is, instead, one of a host of sub-constitutional procedures attendant to searches (e.g., that warrants be executed between 6 A.M. and 10 P.M., that agents knock and announce their presence before entering, etc.). These have long been subject to avoidance if compliance would be foolhardy (e.g., if people inside the premises to be searched are armed, it would endanger agents to search when they are likely be awake, or alert them that a search is about to happen). Thus, it is unsurprising that long before Patriot, another procedural rule, delayed notice, was approved by judicial decisions in just about every jurisdiction. Patriot here does not come close to undermining Fourth Amendment protections–the agents still need to go to a judge with probable cause to get permission to search. The act merely standardizes the hash of varying delayed notice standards that already existed. It’s not at all novel–indeed, delayed notice is a routine feature in analogous contexts, such as wiretaps (which also require notice to interceptees). Imagine if it were not: “Dear Mr. Bin Laden, we’ve been listening in on your phone so you might want to be careful what you say and to whom you say it.”

It also bears noting that Patriot simply delays, as opposed to cancels, notice. The subject of the search will ultimately be told of it, and in the cosmically unlikely event the delay has compromised his ability to conduct his defense (assuming he is charged), he will have every ability to make a motion to a judge empowered to dismiss charges or suppress evidence. In short, that the House would vote to retract such an eminently reasonable provision, of such small importance to the criminal but so potentially critical to national-security investigations, boggles the mind.

THREE NEW INITIATIVES STOKE THE OPPOSITION

Put simply, the manufactured maelstrom engulfing the Patriot Act is pernicious. Patriot is far more about applying common sense than addressing the Constitution, which is why support for passage was almost plenary. Reversing it would endanger national security, and Americans would not stand for the consequences. Imagine trying to explain to them that a bomber was acquitted because the prosecutor refrained from proving a thumbprint on a bomb manual lest some libertarian solipsist be “chilled” from borrowing the latest Harry Potter from the library. Patriot will be lauded, not reduced to agitprop, if it is better explained. Nevertheless, the opposition’s tenacity necessitates that this explanation be made to resonate with the public before further advances, of highly dubious benefit, are attempted.

Along those lines, one wishes the administration would simply drop–for now, and maybe forever–the three new measures it seeks, the announcement of which was timed to coincide with the second anniversary of the September 11 attacks. While all have colorable arguments in their favor, none practically advances the ball, which makes them a net loss because they further galvanize revanchists already making inroads with a misinformed public.

The most politically damaging is the president’s call for terrorism investigators to be able to issue “administrative subpoenas”–that is, demands for information based on the agents’ own authority rather than under the auspices of a grand jury or a court. Why in the world make an issue of this? The need to act under the authority of a grand jury has not been a practical hindrance in a decade of terror investigations. Contrary to what one might assume from the media accounts, prosecutors do not typically ask for permission before issuing grand jury subpoenas. Instead, they issue such subpoenas at will (including, in some dire instances, subpoenas demanding compliance “forthwith”) and then, at some later time, present whatever information is produced to the grand jury.

The ability to demand information on the authority of an executive-branch agency rather than a grand jury or court would not change the quality of compliance with subpoenas, so there is no discernible upside to this initiative. But it would nullify the persuasive force of Ashcroft’s apt contention that the besieged Patriot Act is not an executive-branch power grab but instead features judicial oversight in every important respect. Why give the administration’s critics such rhetorical ammunition? True, as the president has ruefully observed, administrative subpoenas are permitted in the investigation of such comparatively innocuous crime as health-care fraud. But a little Realpolitik is in order. In the pre-9/11 days of miniature government, no one was going to contend that permitting administrative subpoenas for something as de rigeur as health care threatened our constitutional order–not when a fawning media could cast it as just another way President Clinton really, really cared about us. President Bush does not have that luxury. That’s life, so let’s deal with it, shall we?

Similarly inopportune are two other new gambits: the denial of bail for defendants charged with terrorism crimes, and the extension of the death penalty to cover more offenses under the genus of terrorism. Both are worthy ideas, but if they are never enacted it will make scant difference. The vast majority of terrorism defendants are already held without bail pending trial. The president is quite correct when he points out that there is currently a rebuttable presumption against bail in drug cases, and that the law does not expressly provide the same for “terrorism” cases. But the presumption does already exist in all cases where a “crime of violence” is alleged, as well as whenever the potential penalty for the crime charged is life imprisonment or death. There are few terrorism cases indeed where at least one of these predicates will not be met (or where there won’t be some other basis, like suspect immigration status, to deny bail).

Whether the death penalty is eventually imposed for terrorism will have little if anything to do with how many additional crimes (like sabotaging nuclear facilities, as the president proposes) Congress may prescribe it for. Death is already on the books for the broad spectrum of terrorism charges invariably brought in cases where life has been lost. The problem facing the death penalty is the philosophical opposition to it that runs deep in our modern Nomiocracy–including, among many, federal judges who are among its most prominent members, as well as those in the so-called international community.

The death penalty was not imposed in the (pre-September 11) 2001 trial of four al Qaeda operatives who carried out the horrific bombings of U.S. embassies in Kenya and Tanzania in which well over 200 innocents were slaughtered. The presiding judge (an otherwise exemplary jurist but plainly no death-penalty fan) did not rule it out of the case–that would have been flatly wrong under established law. Once the trial was underway, though, he made more subtle rulings that undermined its application. Other judges can be expected to do the same–either out of high-minded predilection or the more mundane but equally real professional reluctance to be reversed in a high profile case. (The government has no appeal if the jury votes against execution.) In addition, many al Qaeda militants are stationed in Europe where the death penalty is outlawed. Thus, even if our government had slam-dunk death-penalty cases against such defendants, those countries would not extradite them here unless we promised not to impose the death penalty.

Perhaps most obvious to trial lawyers, albeit less so to the public at large, the trajectory of terrorism cases presents many obstacles to the death penalty that do not exist in most murder prosecutions. This was apparent during the embassy-bombing case, and is truly front and center in the now infamous dispute over making captured enemy combatant terrorists available for pre-trial consultation with indicted defendants–the government’s refusal to comply with a judge’s order to do so having, at least for now, derailed the death-penalty prosecution of Zacharias Moussaui for complicity in the September 11 attacks.

As was similarly apparent in the afore-described FISA imbroglio, international terrorism is the murky crossroad between intelligence at its most essential and law enforcement at its most pressing. Providing discovery in a criminal case that complies with constitutional requirements as they have evolved over the last half-century puts the prosecutor on a tightrope: ambling between conflicting duties to protect sources of information (on whose secrecy public safety hinges) and to reveal that which an accused is entitled to know for the conduct of his defense. The resulting dilemmas can be mind bending enough when death is not a potential penalty. In all cases the government is required, under the Brady doctrine, to disclose information uniquely within its possession that is suggestive of innocence–not that establishes innocence, mind you, but that a clever defense lawyer might predictably use to argue innocence.

In capital cases, the burden is measurably more daunting: Federal courts demand that the government produce not only exculpatory evidence but also any information that might enable our clever defense lawyer to persuade a jury not to vote death. Further, once a case is underway, the prosecutor’s legal obligations are inflated by the reality of the trial court–where the government has very little practical choice but to comply when the judge orders discovery beyond legal thresholds, which judges are wont to do (as most human beings would be) when the stakes are life and death. In terrorism cases, this dynamic necessarily calls for the government to show more and more of its cards–and, as the events of September 11 bring home like nothing else, at precisely a time when it is increasingly crucial that those cards be held ever closer to the vest. In short, capital terrorism trials in civil courts are a seminar for al Qaeda militants, showing what we know about them, and how we know it.

The Bush administration has been instinctively right on national security all along, and substantively right since the September 11 attacks: International terrorism committed by a determined military enemy is primarily a military problem. To be sure, there is a criminal-justice role, but it is a decidedly supporting role. There is a popular misconception that simply because we successfully prosecuted terrorists in criminal trials for eight years, criminal prosecution should properly have been the linchpin of our national antiterrorism strategy. But conflating courtroom victory with national-security advancement is dangerously delusional. While we were writing indictments and preparing witnesses, terrorists were building bombs and training to hijack planes. While we issued press releases announcing our latest litigation successes, they brazenly compounded the WTC bombing with the killings of American servicemen in Mogadishu (1993), a plot to bomb New York City landmarks (1993), the Khobar Towers bombing (1996), the East African embassy bombings (1998), the attack on the U.S.S. Cole (2000), and the September 11 massacre (2001). National-security success is about deterrence and safety; as we prosecuted, terrorists were plainly not deterred and our country was not safe. President Bush’s military first approach, though assailed in the predictable quadrants, has diluted the organized-terrorist population, necessarily effecting a vast reduction in the overall terrorist threat, and making us incalculably safer.

We need to make people understand what the Patriot Act does, why it is so important, and why the meanderings of self-styled “civil-rights activists”–and those like David Stern who parrot them–are dangerously wrong. The Patriot Act has not put fundamental rights at risk. Instead, Congress has enacted commonsense measures to promote the sharing of vital investigative information; to advance commonplace investigative techniques beyond their antiquation; and to criminalize some tried-and-true terrorist activity. That’s all. If the public is made to understand this simple truth, the political terrain will allow for new improvements. But not before.

–Andrew C. McCarthy, a former federal prosecutor who led the 1995 terrorism case against Sheik Omar Abdel Rahman, is a consultant at the Investigative Project in Washington.

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