Q. Why doesn’t George R.R. Martin use Twitter?
A. Because he killed off all 140 characters.
Reading this excellent piece (from which I've copped the joke) by David Gibson, who writes about religion, got me thinking about my experience reading the first four books of Martin’s A Song of Ice and Fire multi-volume epic – the one that begins with the novel Game of Thrones.
I enjoyed these books, to be sure. I enjoyed them very much in fact. If not, I wouldn’t have persevered through their four-thousand pages. Martin is an accomplished storyteller. He’s good a complex character development. None of his characters are entirely good or bad – though a few may be 97 percent bad – and as you learn more about characters whom you initially despised, you sometimes find yourself empathizing with them. And Martin excels at Machiavellian political plotting, which is what I enjoyed most.
Yet, for me, something was missing. I failed to fall in love with his world of Westeros as much as fell in love with J.R.R.Tolkien’s Middle Earth or J.K. Rawlings’ magical dimension. (What’s with the similar initials, by the way? Are Martin’s middle initials homage to Tolkien? But I digress.)
Despite carefully doled doses of magic, Martin’s world is brutally realistic. It’s not a righteous war between good and bad; it’s a raw struggle for power. There are characters to admire and characters to like, but I failed to fall head-over-heels in love with any of them. Indeed, Martin teaches you early not to do that; his characters are all too mortal, and if do fall in love you will suffer if that character drowns in his own blood. In addition, the complexity and structure of Martin’s storytelling – a very large cast of characters who rotate in and out of the narrative – can make love frustrating. It’s difficult to desperately keep turning the pages when a character you love is in peril when Martin periodically leaves that character for stretches that may run a hundred pages or so.
What we loved so much about Gandalf and Dumbledore was, in part, their commitment to good. We emotionally stood with them and other characters in their apocalyptic struggle against evil. Martin’s characters are more realistic.
But do I really want a realistic fantasy?
The answer, I’m afraid, is no. I am enough of an existentialist to desperately want to give my life a noble purpose – to believe that I have enlisted, in my small way, in the forces fighting for the good. Tolkien and Rawlings’ novels support that world view. I tell myself they are metaphors for our own world, in which there is truth, and good, and meaning – not as clear or pure as in the fantasy world, of course, but real nonetheless. When I make a sacrifice to do the right thing (as I see it), I want to believe that sacrifice had a genuine purpose. Martin kept telling me that I’m deluding myself. The world is a dog-eat-dog struggle for power and limited resources, and nothing more.
David Gibson’s piece made me realize that Martin’s world is soulless. When it comes to fantasy, I prefer soul to realism.
I don’t mean to be too hard on Martin. He knows how to tell a tale, and I did enjoy his books. But if I learn that the final volumes in A Song of Ice and Fire tend, just a bit, to the view that all of the tears and blood have not been for naught – that good does exist, that love can prevail – then I'm more likely to finish the series.
Maybe I am deluding myself. But I’d appreciate a little help.
Here’s a concise legal briefing that may be helpful to understanding the so-called Associated Press scandal.
Do journalists have a constitutional privilege that protects them from criminal investigations seeking to learn the identity of sources? The Supreme Court has said no. It made that decision in the case of Branzburg v Hayes, 408 U.S. 665 (1972). Writing for the Court, Justice Byron White said:
“[W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. …The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.”
Among other things, the Court was concerned about determining who members of the press are. A journalist’s privilege is far more troublesome to apply than, say, the attorney-client privilege or doctor-patient privilege, because it’s easier to identify a lawyer or doctor than a journalist. “Sooner or later,” wrote the Court, “it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Obviously, the internet has complicated this even further.
The Court certainly did not write freedom of the press out of the First Amendment. “We do not question,” it wrote, “the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.” But the Court suggested that the normal principles and procedures that apply to all citizens – with courts being sensitive to the First and Fifth Amendment concerns – were adequate to protect the press from improper investigations. The Court noted that the press can challenge subpoenas or grand jury inquiries that are not undertaken in good faith or serve legitimate objectives of law enforcement.
In a concurring opinion, Justice Powell wrote: “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. …The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Some lower courts and scholars have read the majority opinion, together with Powell’s concurrence, as implicitly recognizing some kind of journalist’s privilege – perhaps a conditional common law privilege as opposed to a constitutional privilege – but most courts read Branzburg as rejecting a journalist’s privilege of any kind. Frankly, despite ambiguities and my own preferences, that’s how I read the Court’s opinion.
The most fascinating aspect of Branzburg is this: A dissent by Justice Potter Stewart, and joined by Justices William J. Brennan and Thurgood Marshall, has been more influential than the opinion of the Court itself.
Stewart thought that journalists should enjoy a conditional privilege that must be balanced against the legitimate need of the government to investigate and prosecute crimes. Stewart said the balancing should work as follows:
“[W]hen an investigation impinges on First Amendment rights, the government must not only show that the inquiry is of ‘compelling and overriding importance’ but it must also ‘convincingly’ demonstrate that the investigation is ‘substantially related’ to the information sought.
“Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. They must demonstrate that it is reasonable to think the witness in question has that information. And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties.”
Forty states and the District of Columbia have enacted shield laws along the lines advocated by Justice Stewart. So throughout most of the country, state prosecutors must follow Stewart’s prescriptions.
Congress, however, has never enacted a federal shield law protecting journalists. Nonetheless, the Department of Justice has adopted formal regulations (28 C.F.R. §50.10) and internal guidelines (USAM 9-13.400) for subpoenaing the news media, which are also along the lines of Stewarts’s dissenting opinion. Although those regulations are designed to create departmental policy and not create rights, federal agencies are – as a matter of administrative law – required to follow their own regulations.
DOJ’s regulations state that “the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.” Its guidelines related to subpoenaing telephone toll records – which is what occurred in the AP case – read in pertinent part:
“…Department attorneys should take all reasonable steps to attempt to obtain the information through alternative sources or means. In addition, Department attorneys contemplating issuing a subpoena to a member of the news media must first attempt negotiations with the media aimed at accommodating the interests of the trial or grand jury with the interests of the media. Negotiations with the affected media member must also precede any request to subpoena the telephone toll records of any member of the news media, so long as the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the investigation at issue.” emphasis added).
It is, of course, preferred that the government give prior notice so that the subject of the subpoena can obtain court review before the government obtains the information. But if no prior notice was given because the assistant attorney determined that prior notice would substantially threaten the investigation. In that circumstance, DOJ is then required to give notice within 45 days of obtaining the subpoena. That’s what happened here.
AP is incensed that its telephone toll records were obtained without prior notice. (These are records of who called whom, when, and how long the call lasted.) The Reporters Committee for Freedom of the Press has written a letter contending that DOJ did not comply with its regulations, and arguing the episode demonstrates that Congress needs to enact a strong shield law. Attorney General Eric Holder says the Justice Department was investigating “a very, very serious leak” that “put the American people at risk, and Deputy Attorney General James Cole has written a letter claiming DOJ followed its regulations.
If it believes it can do so successfully, AP will now presumably challenge the subpoena in court. In that event, DOJ will have to show that it complied with its own regulations. Meanwhile, other DOJ subpoenas seeking to discover a journalist’s sources are coming to light. (More about that here.) Because both AP and these other matters involve criminal investigations, DOJ is constrained from defending itself in the court of public opinion. Thus, it’s in the courts of law where this will have to be resolved.
The Washington Post op-ed page today has dueling columns related to the so-called Benghazi scandal – one by Ruth Marcus (here); the other by Charles Krauthammer (here). In the actual newspaper, Marcus’ column appropriately runs down the left-hand side of the page and Krauthammer’s down the right-hand side. Both journalists evaluate the emails that passed among the State Department, the CIA, and the White House on September 14, 2012, while those agencies were furiously discussing what the infamous talking points that Susan Rice later relied upon should contain – or, more accurately, not contain. Marcus says that the “White House comes off looking rather responsible” while Krauthammer says the facts show that “the administration was assiduously trying to control and suppress” information. Who’s right?
The Republican narrative – reargued by Krauthammer – is that the administration knew all along that what occurred in Benghazi was a planned terrorist attack, but for political reasons wanted to mislead the American public into believing that the attack erupted spontaneously from demonstrations. Do the emails support that narrative?
As it turns out, a necessary villain in that narrative is Victoria Nuland, who represented the State Department in those email discussions. Krauthammer writes:
“The original CIA draft included four paragraphs on the involvement of al-Qaeda-affiliated terrorists and the dangerous security situation in Benghazi. These paragraphs were stricken after strenuous State Department objections mediated by the White House.”
It was Victoria Nuland who made those strenuous objections.
I’ll return to Nuland a moment. But first, about what was Nuland objecting? One key sentence was this: “On 10 September we [the CIA] warned of social media reports calling for a demonstration in front of the Embassy [in Cairo] and that jihadists were threatening to break into the Embassy.” Here’s another key sentence: “The Agency [CIA] has produced numerous pieces on the threat of extremists linked to al-Qaeda in Benghazi and eastern Libya.” There’s also a mention of the group Ansar al-Sharia, which was calling for jihad in Libya. The original talking points don’t blame Ansar al-Sharia for the attack; they merely state that early press reports blamed that group, and note that although the group denied direct responsibility it did not deny that its individual members may have been involved. You can read all of the emails and talking point drafts for yourself here.
All of that was removed so that, as Krauthammer sees it, “All that was left was the fable of the spontaneous demonstration.” Krauthammer argues that was the dirty work of the State Department – i.e., Nuland – with White House support. Although Krauthammer doesn’t tell his readers this, the extent of White House support was an email from Deputy National Security Adviser Benjamin J. Rhodes, who wrote: “We need to resolve this in a way that respects all relevant equities, especially the investigation.”
The CIA, says Krauthammer, was merely a scribe in making deletions, and the FBI did not raise “significant objections.” In other words, the two agencies responsible for suppressing the truth were those with political motivations – the ones headed by Hillary Clinton and Barack Obama.
But Krauthammer ignores an email sent at 4:20 p.m. by the General Counsel of the CIA, who wrote:
“Folks, I know there is hurry to get this out, but we need to hold it long enough to ascertain whether providing it conflicts with express instructions from NSS/DOJ/FBI that, in light of the criminal investigation, we are not to generate statements with assessments as to who did this, etc. – even internally not to mention for public release.”
So the FBI didn’t have to voice those concerns because the General Counsel of the CIA voiced them on the FBI’s behalf.
Incidentally, if you read the emails for yourself, I think you’ll see that although today we know there were no demonstrations in Benghazi that day, and the attacks were launched exclusively by terrorists, things seemed murkier to participants in those email exchanges on September 14, three days after the attack. In fact, it seems they didn’t view those two things – demonstration versus terrorist attack – as separate and distinct possibilities. Rather, the original talking points seem to suggest that jihadists may have helped inspire demonstrations to cover, camouflage, or help recruit additional participants for a planned attack. The talking points don’t say that expressly. Only one thing then seemed certain: The United States didn’t yet know exactly what happened and was investigating.
This brings us back to Victoria Nuland. If there are villains, she has to be among them because it was Nuland who demanded the deletions that – according to Krauthammer – were intended to conceal the truth and promote a fable. In an email sent at 7:39 p.m., Nuland raised two concerns. Why, she asks, “do we want Hill to be fingering Ansar al Sharia, when we aren’t doing that ourselves until we have investigation results.” It’s important to bear in mind that while today we are focused on the talking points later being used by Susan Rice, those same talking points were also to be given to members of Congress, and it’s Congress on which Nuland is focused. Second, Nuland says she’s concerned that the talking points may lead members of Congress “to beat the State Department for not paying attention to Agency warnings.” In other words, the CIA is covering itself by saying it warned the State Department about possible attacks – but at the expense of State which members of Congress will blame for ignoring those warnings.
Was Nuland a political operative seeking to protect Hillary Clinton or ensure the reelection of Barack Obama? Or – far more prosaically – was she a State Department bureaucrat seeking to protect her agency?
Victoria Nuland is, in fact, a career foreign service officer who has served in important posts in both Republican and Democratic administrations. In Bill Clinton’s administration, she was chief of staff to Deputy Secretary of State Strobe Talbot. In George W. Bush’s administration, she was principal deputy foreign policy adviser to Vice President Dick Cheney. Later she served as ambassador to NATO (Bush administration) and special envoy to Conventional Armed Forces in Europe (Obama administration). At the time of the relevant events, she was the State Department’s spokesperson. Nuland also happens to be married to well-known neoconservative historian Robert Kagan.
In his column, Krauthammer wrote: “Let the facts speak for themselves.” So be it.