Attempted murder by pepper spray?

By Ellen Ratner
The White House Press room was abuzz this week. Everyone was talking about it. Obama? Iran? Iraq? No, it was the story of the astronaut Lisa Nowak and the attempted murder charge filed against her following the assault of U.S. Air Force Capt. Colleen Shipman. During the last two weeks I have written about prosecutorial overreach as it has related to the Lewis ''Scooter'' Libby trial. This case reminds me of the same game – feather one's professional nest on the wings of some vulnerable birds. Nowak's case is even more serious as she is charged with attempted first-degree murder with a weapon. Attempted murder by pepper spray? This may very well be the first time someone has been charged with attempted murder by pepper spray.



The prosecution is basing their charge on the fact that Nowak was traveling with plastic bags, a mallet, a knife, a BB gun and directions to Shipman's home. It's hard to believe that someone who has been trained in the use of real firearms would choose a BB gun if the intention was to commit murder. Added to this, Nowak left all of these alleged deadly weapons in her car – except the pepper spray.

I am not suggesting that astronaut Nowak get a slap on the wrist and an e ticket on the next space shuttle launch. She should be held accountable for her actions, not a prosecutorial fantasy. I looked up the definition of attempted murder on Wikipedia to see if I was being too lenient on Nowak. The common sense test of an actual attempt is ''that the defendant must have"... crossed the rubicon, burnt his boats, or reached a point of no return.'' (DPP vs. Stonehouse [1977] 2 All ER 909 per Lord Diplock.)

Nowak's actions included stalking another person, threatening them and using pepper spray. Stalking someone is very serious and is unfortunately often taken too lightly by authorities. One in 12 women is stalked in their lifetime. The stalker often becomes so obsessed that they spend hours and days tracking movements, finding out small details about their victim and losing all rationality and boundaries between them and their victim. Nowak fits the stereotypical stalker, not axe murderer. If she had the pepper spray in one hand and the mallet in the other with the knife in her mouth, she would have passed the test for attempted first-degree murder.

Nowak could be put in prison for life if she is convicted of attempted first-degree murder. She has had an exemplary life from high school, to the Naval Academy, to NASA. Up until now, those credentials have worked in her favor. Now her distinguished record is the reason she and her spacesuit are in the ringer. The prosecutors and the media are using her pain for their gain. Nowak, in a word, snapped, but she did not attempt to kill anyone. It's time we take our justice system out of the 24-hour news cycle which gives incentive to those who seek personal gain above justice.

Dirty laundry: Libby hung out to dry

By Ellen Ratner
In case you were wondering what side former Bush press secretary Ari Fleisher is on in the Scooter Libby trial, you need not wonder any longer. He is on the side of Ari Fleisher. The former White House press flack has realized he no longer needs to flack for the administration and has taken up flacking for himself. Yep, he made a deal with the prosecutor. He would talk in exchange for immunity.



According to Saturday's edition of The New York Sun:

''Special Prosecutor Fitzgerald said that in early 2004, as his investigation was heating up into who revealed CIA operative Valerie Plame's name to reporters, Fleischer stepped forward with an offer to prosecutors: Promise no prosecution and he would help their case. Fleischer acknowledged being one of the leakers, but he wouldn't say a word without a promise of immunity. 'I didn't want to give him immunity. I did so reluctantly,' Fitzgerald said in court Thursday. 'I was buying a pig in a poke.'''

Fleisher did exactly what Libby is accused of doing, but he is walking free after turning state's evidence against his former colleague. Pressed, Fleisher is taking a coward's, save my skin, way out. Fitzgerald may not have had much of a case without Fleisher. And we would not have had a spectacular look at how the Bush-Cheney White House tries to control the press. Anyone who covers the White House knows how the game is played. Leak to the ''friendlies'' and the powerful, control the message, and don't tell the truth when it might get you in trouble.

It was all there on Friday as former Cheney staffer, Cathie Martin, illuminated just how the administration tries to control message by putting the vice president on Tim Russert's ''Meet The Press.'' Martin admitted that the White House puts out bad news on Friday (after the television networks have finished their shows). She admitted that the press did not believe White House denials of the leaks. Fleisher leaked and Libby leaked but somehow the rest of the press were supposed to believe the White House's story that the administration was not out to punish or bully Ambassador Wilson. The blame has all been laid to rest on Libby's shoulders. For last week's readers of this column, you may recall Libby is blamed for a leak that was not criminal, but his alleged lying about a non-criminal leak is criminal.

The alternating leak and spin cycle of presidential information flow was supposed to come to an end under Fleisher's tenure. He had promised a different sort of press operation way back in 2000. Briefings were going to start on time; there would be more equal access, blah, blah, blah. No one believed that at the time, even though those of us that cover the White House wanted to believe it. Ari Fleisher wanted to ''change the tone'' in Washington. He said the press would be given things straight up, no leaks. His briefings started on time, but the content and method of information flow was the same old same old – spin and leaks. Cheney's staffer also revealed that the administration chose not to allow key staffers to talk to the press so they would not have to lie. They could honestly say they don't know when pressed by a journalist for an answer.

Why should we be outraged with business as usual? The American people are funding this perversion of truth. Yes, Joe Lunch Pail and Sally Soccer Mom work hard to fund this leaking spinning machine. Essentially, tax dollars pay the salaries so government officials can spend time (and our money) deciding who gets what story, who gets told the truth, and who gets a leak that may or may not be true. Then, the Leaker in Chief Ari Fleisher gets to save his own skin and fill his piggy bank as a high paid consultant to those who want to court special favors from our government.

This is some system we have. I would go so far as to say that it threatens our democracy by undermining the free flow of information, ideas and policy. Who cares? The Columbia Journalism Review published an article in 2003 about the press coverage leading up to the Iraq invasion. As I recall, well over 8 percent of the sources cited for the stories were ''government officials.'' These carefully selected officials spun us right into an out of control war that has taken the lives of thousands of American service men and women and tens of thousands of innocent Iraqis.

As I have said before in this column, I often sit next to the Pravda reporter at the White House. He has been there since before the break-up of the Soviet Union. He laughs at the spin and he feels comfortable with it, he recognizes it, it's just like the Soviet spin machine.

Gone fishing on the taxpayers' dime

By Ellen Ratner
Last week, I sat in a federal courtroom as my friend, former Republican Rep. Bob Ney, was sentenced to 30 months in prison. As I took my place on the bench reserved for family and friends, a woman smiled and introduced herself as the lead prosecutor's sister. Two young girls, and an older woman who was probably the mother of the prosecutor, accompanied the woman. They were all perched proudly on the front bench.


This was clearly the prosecutor's big case.

She had bagged not only a member of Congress but a House Republican chairman and she had the cheering section commensurate with the conquest. Now that is what you call in the business, a ''big fish.'' I was horrified that the prosecutor was so proud of putting this ''big fish'' in jail that she had invited the family. The government got their House chairman and accomplished this by getting grand jury testimony from former staffers who have not been charged and who clearly had motivation to make the boss look bad while they secured a ''get out of jail free'' card. This horse trading of course is done courtesy of the prosecutors. The Ney case was taking place in exactly the same courthouse that is housing another big government trial designed to enhance the career of another career prosecutor, Mr. Fitzgerald, in the Lewis ''Scooter'' Libby case.

While both of these cases involve high-profile government employees, there are many differences between the two. One, Ney pleaded guilty and Libby is going to take his chances with a trial. Two, Ney was abandoned by the power structure, and Libby has been fortified by it. He has raised over three million dollars and has a vice president in his corner who is willing to testify for him. Former Rep. Ney had no money to go to trial and so was forced to cop a plea, even though most believe he would have likely been exonerated had he gone to trial. You are only entitled to a fair trial if you can afford the trial.

What is so astounding is the amount of taxpayer money involved in these ''career making'' prosecutions. The Libby case is a particularly egregious abuse of money. I say this not as a fan of Mr. Libby and his former boss, Vice President Dick Cheney, but as a concerned citizen. Someone leaked the fact that Valerie Plame worked for the CIA. That is a fact that everyone agrees on. The question in this case began as who leaked what first, was it done to harm her husband's findings on weapons of mass destruction as it related to ''yellow cake uranium'' in Niger, and did Libby lie about it?

After several months of research, investigations and wringing of hands in the prosecutor's office, it turned out that the only ''criminal'' question out of the three turned out to be ''lying.'' From that point, the case quickly began to center on the question of did Libby lie to the grand jury about who he told what to? He was not charged under any law for revealing her name but he has been charged for perjury. Give me a break. Libby is a bright lawyer who clearly knew that leaking information was not a crime. He knew that he could not be charged under the espionage law. So, what possible incentive would he have to lie? To cover up for the vice president? Cover up what? Assuming he was covering for Mr. Cheney, then what would Cheney have been charged with?

It seems as if Libby may use the defense that he had honestly forgotten who he said what to. Many of my liberal friends think he is out and out lying. They don't like what Libby stands for and what he did in terms of promoting the bogus ''Casus Belli'' for the Iraq invasion. I agree with them, it would be a lot better for the country if Libby and Cheney and the rest of them were never anywhere near the West Wing of the White House. But, to spend two years of Fitzgerald's time and our taxpayer money for a perjury charge that started out with an investigation in a matter that was not even criminal is completely crazy.

The average American taxpayer pays about $5,000 in income tax. Assuming that the trial costs at least 3 million dollars for the federal government to prosecute, then 600 Americans would have worked a full year because someone may have lied about something that was not criminal and the individual most likely forgot whom he said what to. How many of us think we told our spouses or children something and didn't, how many of us wrote a check for something and can't remember what it was for?

This is justice? It is a media trial. The prosecutors have used our tax dollars to go on a fishing trip in order to make their own careers. It is time to bring some sanity to the court system. Perjury cases as well as cases where underlings are allowed to embellish the truth in order to save their own necks, (think Sammy the Bull), have two winners, the media and the prosecutors.

The Department of Offense

By Ellen Ratner
Three things converged this week to give any American pause, or more precisely, a scare. The New York Times revealed that, ''The Pentagon has been using a little known power to obtain banking and credit records of Americans and others suspected of terrorism or espionage . . . '' Earlier in the week Charles Stimson, a Deputy Assistant Secretary of Defense for Detainee Affairs, said on a radio show that businesses should boycott law firms that have lawyers representing Guantanamo Bay prisoners pro bono. Third, President Bush put in writing that the government may open mail of people who the government may find suspicious.



To be fair, the Pentagon disavowed Deputy Assistant Stimson's remarks, but did not go so far as to remove him from his job. Deputy assistant secretaries do not need Senate confirmation. They are appointed by the administration and are often there to carry out the political will of the administration in charge. This disavowing could be, as they say in the spy business, "plausible denial," on the part of the higher ups in the Pentagon.

The Pentagon isn't a fan of the lawyers representing the uncharged men in the custody of the United States at Guantanamo Bay. There has been well-placed suspicion that the reason the Pentagon did not seek warrants from the special FISA (Foreign Intelligence Surveillance Act) Court is that they did not want to admit they were attempting to get information about the lawyers defending the Guantanamo prisoners. So, while the Pentagon says Mr. Stimson was wrong, he has served to act as chaff, or a decoy for the practices of the Pentagon and other government agencies.

The conservative talk media says America shouldn't be worried about the shredding of the Constitution and Bill of Rights. They explain how important the information is that the government is illegally collecting, and how it is aggregated without identifying specific people, and how we are fighting a ''war on terror'' in a new world that demands that we fight with at least the same tools the terrorists have. Congressional hearings on data mining this week challenge this viewpoint. Several witnesses from various political backgrounds and viewpoints said that data mining is not effective. Leslie Harris from the Center for Democracy and Technology said, ''There is little evidence of the efficacy of ... data mining in the antiterrorism context and that the sample of known terrorists whose behavior can be studied is statistically insignificant to identify an unusual or unique pattern of behavior.'' Other witnesses discussed the false positive rate and what that would mean for individual citizens without the recourse to get their status changed. Jim Harper of the libertarian Cato Institute said that consumer data mining companies see the government as a lucrative customer. Big business always seems to be the greatest beneficiary in the war on terror.

What is most disturbing is the flouting of the law by both the CIA and the Defense Department. Neither agency has the legal authority to spy on American citizens without warrants issued by a legitimate court. Citizens who elect our government don't even know the extent of the data mining or other government surveillance of individual citizens or groups. The existence of this wholesale spying and data collection of phone bills, credit card expenses and the like would have never been known if brave individuals did not leak this information.

The arguments by supporters of these practices say, ''I haven't done anything illegal so I don't care.'' Communist party members made these same arguments behind the ''Iron Curtain.'' Only in the light of recent history are citizens of Poland and East Germany finding out that their neighbors reported on their activities and sometimes incorrectly for their own purposes. No, we are probably not at this point having neighbor spy on neighbor, but what if the collected information is incorrect? How many times have we found incorrect information on a credit report or phone calls charged that we did not make?

For everyone who says that we should just trust the government, I wonder if they will say the same thing when the next President takes office. The underlying premise of our Constitution is that government is not to be trusted. Our Founding Fathers had it right.

Different sides of the same coin

By Ellen Ratner.com
Saddam is dead; Moktada al-Sadr is alive. The two men are, to use an expression I heard from a student at the University of Damascus, ''two sides of the same coin.'' In all the coverage of the Saddam execution, I was most struck by this account in Sunday's New York Times:



The room was quiet as everyone began to pray, including Mr. Hussein. ''Peace be upon Muhammed and his holy family.'' Two guards added, ''Supporting his son Moktada, Moktada, Moktada.''

Mr. Hussein seemed a bit stunned, swimming his head in their direction.

They were talking about Moktada al-Sadr, the firebrand cleric whose militia is now committing some of the worst violence in the sectarian fighting; he is the son of a revered Shiite cleric Muhammad Sadiq al-Sadr, whom many believe Mr. Hussein ordered murdered.

The U.S. invasion of Iraq has shifted power from the Sunnis to the Shiites. Most Americans likely don't know, or care about the difference between the two. This is unfortunate, as it may ultimately be the undoing of American influence, however tenuous it may be, in the oil rich region of our globe.

I am no Islamic scholar, but I can briefly sum up one important difference between the two. The Shiites believe their leadership must come directly from Muhammed's bloodline. The Sunni endorse the leadership of Muhammed's successors. Iran's population is predominantly Shiite and Saudi Arabia's is Sunni. The Shiites also believe in the ''Mahdi,'' the rightly guided one, whose role, according to the History News Network, is ''to bring a just global caliphate into being.''

Oddly enough, Moktada al-Sadr is a Shiite cleric who happened to name his militia the ''Mahdi Army.'' He professes himself to be the rightful leader of his people. I call him the ''Come Back Kid.'' He went from being ''most-wanted,'' as in dead or alive, by coalition forces, to ''most appeased,'' by Iraq's prime minister. J. Paul Bremer, the first president of post-Saddam Iraq, attempted to shut down al-Sadr's newspaper, arrest him for inciting violence and charge him with the murder of another cleric back in the summer of 2004. There was the famous showdown at the Holy Shrine of Najaf between al-Sadr's Mahdi Army and the U.S. Marines. This is a telling account from Time magazine's Aug. 15, 2004 report on the battle for Najaf:

For eight days, the warnings of a decisive military showdown echoed across Najaf as fighting raged between U.S. forces and Shi'ite militiamen for control of the holy city. The Shi'ites' truculent leader, cleric Muqtada al-Sadr, vowed not to leave his bunker in the sect's sacred Imam Ali shrine "until the last drop of my blood has been spilled." The U.S. Marine colonel commanding American and Iraqi-government troops battling the stubborn gunmen of al-Sadr's Mahdi Army proclaimed his men were ready "to finish this fight that the Muqtada militia started." Iyad Allawi, the Prime Minister of Iraq's U.S.-backed interim government, declared there would be "no negotiation or truce" with the Shi'ite rebels. As the battle unfolded amid the dusty vastness of the city's Valley of Peace cemetery adjacent to the shrine and U.S. Marines engaged in a tomb-to-tomb fight with black-clad Mahdi fighters, all the elements of Armageddon seemed to be converging on the place. And then on the ninth day, everyone drew back. .In Baghdad, authorities wavered between efforts to keep him at arm's length and attempts to invite him into the political process. The Bush Administration regards him as a thug and refuses to engage with someone it sees as a carbon copy of Iran's ruling mullahs. Nor do Western officials in Baghdad trust his tactics. "We've been watching him take over the city of Najaf bit by bit by bit," says an official. "That experience has given us cause to question his credibility when he makes promises and to wonder whether he is prepared to play in a political process marked by votes."

Times have changed. The only votes that matter are the ones al-Sadr delivered for the Iraqi Prime Minister al-Maliki in order to put him into power. Now, while Iraq's so-called ''national unity'' government is made up of Shiites, Sunnis and Kurds, the government is beholden to the Shiites and to al-Sadr in particular. Try as he may, Malaki just can't seem to root out those who play Iraqi cop by day and Shiite death squad by night.

Saddam's execution is another example of how the Shiites are bypassing the tenuous Iraqi ''rule of law.'' Saddam's fate was to be decided by a three-judge panel made up of a Shiite, Sunni and Kurd. Instead, al-Maliki fast-tracked him to the gallows.

My prediction for 2007 is that Malaki will continue to be a figurehead of state. He is now a puppet of al-Sadr, not the United States. Saddam's death has given birth to a new leader. The Caliph ruled Baghdad until 1258. The Caliph is back.