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Suicide Bombings in Northern Iraq
The Bush administration is in a race with time and Iraqi insurgents, who want to stop the orderly transfer of power now scheduled for mid-summer. This weekend's double suicide bombing brought terrorism and chaos to the Kurdish North and may create a new obstacle to unifying the country. Meantime, In the South, massive street demonstrations have raised the prospect of tyranny by the majority Shiites, who are demanding direct elections. With just three weeks until the deadline for an interim constitution, can Iraq's diverse populations be reconciled? Will the US get any help from the United Nations? We update America's race against time and the violence that threatens an orderly process.
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washingtonpost.com
Musharraf Named in Nuclear Probe
Senior Pakistani Army Officers Were Aware of Technology Transfers, Scientist Says
By John Lancaster and Kamran Khan
Washington Post Foreign Service
Tuesday, February 3, 2004; Page A13
ISLAMABAD, Pakistan, Feb. 2 -- Pakistan's top nuclear scientist, Abdul Qadeer Khan, has told investigators that he helped North Korea design and equip facilities for making weapons-grade uranium with the knowledge of senior military commanders, including Gen. Pervez Musharraf, Pakistan's president, according to a friend of Khan's and a senior Pakistani investigator.
Khan also has told investigators that Gen. Mirza Aslam Beg, the Pakistani army chief of staff from 1988 to 1991, was aware of assistance Khan was providing to Iran's nuclear program and that two other army chiefs, in addition to Musharraf, knew and approved of his efforts on behalf of North Korea, the same individuals said Monday.
Khan's assertions of high-level army involvement came in the course of a two-month probe into allegations that he and other Pakistani nuclear scientists made millions of dollars from the sale of equipment and expertise to Iran, Libya and North Korea.
They contradict repeated contentions by Musharraf and other senior officials that Khan and at least one other scientist, Mohammed Farooq, acted out of greed and in violation of long-standing government policy that bars the export of nuclear weapons technology to any foreign country.
In conversations with investigators, Khan urged them to question the former army commanders and Musharraf, asserting that "no debriefing is complete unless you bring every one of them here and debrief us together," according to the friend, who has met with the accused scientist twice during the past two months.
On the basis of Khan's claims, Beg and another former army chief of staff, Gen. Jehangir Karamat, who occupied the post from 1996 to 1998, have been questioned by investigators in recent days, but both have denied any knowledge of the transactions, according to a senior Pakistani military officer who spoke on condition of anonymity.
Gen. Shaukat Sultan, Pakistan's chief military spokesman, declined to comment on the specifics of the allegations but asserted that "General Pervez Musharraf neither authorized such transfers nor was involved in any way with such deeds, even before he was president." Beg and Karamat could not be reached for comment Monday night.
Khan and other senior scientists and officials at the Khan Research Laboratories, the uranium-enrichment facility Khan founded in 1976, have been under investigation since November, when the International Atomic Energy Agency presented Pakistan with evidence that its centrifuge designs had turned up in Iran. The flamboyant European-trained metallurgist, who is 67, became a national hero in Pakistan after the country detonated its first nuclear device in 1998.
In a briefing for Pakistani journalists late Sunday night, a senior Pakistani military officer said that Khan had signed a 12-page confession on Friday in which he admitted to providing Iran, Libya and North Korea with technical assistance and components for making high-speed centrifuges used to produce enriched uranium, a key ingredient for a nuclear bomb.
Lt. Gen. Khalid Kidwai, commander of Pakistan's Strategic Planning and Development Cell, described Khan as the mastermind of an elaborate and wholly unauthorized smuggling network involving chartered cargo flights, clandestine overseas meetings and a Malaysian factory that reconditioned centrifuge parts discarded from Pakistan's nuclear program for sale to foreign clients, according to a journalist who attended Kidwai's 21/2-hour briefing.
The technology transfers began in 1989 and were brokered by a network of middlemen, including three German businessmen and a Sri Lankan, identified only as Tahir, who is in custody in Malaysia, Kidwai told the journalists.
According to Kidwai's account, Khan told investigators that he supplied materials and assistance to Iran, Libya and North Korea not to make money but to deflect attention from Pakistan's nuclear program and -- in the case of Iran and Libya -- as a gesture of support to other Muslim countries.
The senior Pakistani investigator and a senior intelligence official said Monday that Khan also said he supplied Iran and Libya with surplus, outmoded equipment from the laboratory that he knew would not provide either country with any near-term capability to enrich uranium.
"Dr. Khan is basically contesting the merit of the nuclear proliferation charges," the investigator said. "Throughout his debriefing, Dr. Khan kept challenging the perception that material found from the Libyan or Iranian programs would allow them to enrich uranium."
Investigators contend that Khan accumulated millions of dollars in the course of a 30-year career as a government scientist, investing some of it in real estate in Pakistan and abroad. Kidwai told Pakistani journalists that investigators had reached no conclusions about the source of Khan's wealth, but he acknowledged that Khan's lavish lifestyle was "the worst-kept secret in town" and should have triggered suspicions among those responsible for protecting Pakistan's nuclear secrets, according to a journalist who attended the briefing.
Kidwai "admitted to oversight and intelligence failure," the journalist said.
Kidwai avoided any suggestion of complicity on the part of senior military commanders, including Musharraf, who has maintained throughout the investigation that any transfer of nuclear technology abroad was the work of individuals driven by greed.
By all accounts, Khan ran the laboratory at Kahuta, about 20 miles from Islamabad, with scant oversight from either civilian or military-led governments eager to achieve nuclear parity with arch rival India.
The military was ultimately responsible for the facility, where security was overseen by two army brigadiers and a special detachment from Pakistan's Inter-Services Intelligence agency, or ISI. And Khan is said to have insisted during his sessions with investigators that senior military commanders were well aware of his efforts to help other countries with their nuclear programs.
The senior Pakistani investigator said that Beg was "in the picture" regarding Khan's assistance to Iran, but said the former army chief of staff was "probably . . . under the impression that material and knowledge being transferred to Iran would not enable them to produced enriched uranium" because of Khan's claim that he was withholding top-of-the-line equipment. Investigators have found evidence that Khan informed Beg of the transfer of outdated hardware from his laboratory to Iran in early 1991, the official said.
Khan told two generals who jointly questioned him last month that three army chiefs of staff, including Musharraf, had known of his dealings with North Korea, according to the friend of the scientist. "Throughout his debriefing, Dr. Khan kept asking the generals why he was not being asked specific questions about the material he passed on to the North Koreans," the friend said.
U.S. officials have long suspected that Pakistan supplied uranium enrichment technology to North Korea in exchange for help with its ballistic missile program, and that Khan acted as the principal agent of the arrangement. After stating in 2002 that it had a program for enriching uranium for use in weapons, North Korea more recently has denied it.
A retired Pakistani army corps commander said Monday that the barter arrangement dates to December 1994, when then-Prime Minister Benazir Bhutto traveled to North Korea at the request of Gen. Abdul Waheed, the army chief of staff at the time. A few months later, Khan led a delegation of scientists and military officers to Pyongyang, the North Korean capital, according to the retired general and a senior active duty officer, both of whom spoke on condition of anonymity. Musharraf was serving at the time as Waheed's director general for military operations.
In January 1996, Waheed was replaced as chief of staff by Karamat, who secretly visited North Korea in December 1997, according to the retired corps commander. Four months after the trip, in April 1998, Karamat presided over the successful test-firing of a medium-range missile the Pakistanis called a Ghauri. According to U.S. intelligence officials and a former Pakistani nuclear scientist, the Ghauri was simply a renamed North Korean-supplied Nodong missile. Pakistani officials maintain publicly that the Ghauri missile is indigenous to Pakistan.
The senior investigator said Khan claimed that Karamat was privy to the details of the barter arrangement through which Pakistan received the missile, and that Khan had insisted that Karamat's role also be examined.
Khan also has asserted that Musharraf had to have been aware of the agreement with North Korea because Musharraf took over responsibility for the Ghauri missile program when he became army chief of staff in October 1998, according to the scientist's friend and the senior investigator.
According to Kidwai's account to journalists, senior military commanders did not get wind of Khan's nuclear dealings with North Korea until 2000, when the ISI conducted a raid on an aircraft that the laboratory had chartered for a planned flight to North Korea. Although a search of the aircraft turned up no evidence, authorities were sufficiently concerned that they warned Khan against pursuing any clandestine trade with North Korea, Kidwai told the journalists.
That concern deepened, according to Kidwai's account, after U.S. officials in 2002 and early 2003 presented evidence that Pakistani nuclear technology may indeed have found its way to North Korea.
? 2004 The Washington Post Company
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washingtonpost.com
Pakistan's Nuclear Hero Defended
By Jefferson Morley
washingtonpost.com Staff Writer
Tuesday, February 3, 2004; 10:18 AM
Online commentators in Pakistan are rallying to the defense of the country's leading nuclear scientists, one of whom has confessed to selling weapons technology to North Korea, Iran and Libya.
Abdul Qadeer Khan, the father of Pakistan's nuclear program, is reportedly under house arrest in connection with a U.S.-backed investigation into the lucrative black market in nuclear weapons technology. Correspondents John Lancaster and Kamran Khan (no relation to the physicist) report in today's Washington Post that Khan has signed a 12-page confession. Khan has also reportedly told investigators that Pakistani President Pervez Musharraf knew about his efforts to help North Korea's nuclear program.
The revelation will likely stoke an already intense debate. While many Pakistanis defend Khan as a national hero, others in the South Asian media see Khan, a flamboyant self-promoter, as the scapegoat of Musharraf and the permissive nonproliferation policies of the U.S. government.
The 67-year old scientist is "being held incommunicado with heavy security around his house," according to the Times of India. The paper's headline suggests that U.S. officials in Washington are not keen to hear Khan recount the story of his nuclear-related activities in the past two decades: "US, Pak dread Khan's Disclosures."
"Washington and Islamabad," says the Delhi-based daily, are "holding their breath" to see if Khan "will spill the beans about Pakistan's official complicity in the spread of nuclear weapons technology."
In Islamabad, the pro-democracy daily The Nation says Khan's detention is "bound to create a wave of puzzled resentment among a populace which has been accustomed to regard him as the father of the national nuclear programme."
"Dr Khan could not have done anything wrong or even inappropriate without the connivance or neglect of those controlling" Pakistan's nuclear program, the editors say.
Another commentator in The Nation wonders why Musharraf has been so cooperative with the U.S. effort to hold Khan accountable.
"Why it is so that the general who shows fists to the opposition in the parliament, has become so nervous that he is not prepared to face the situation and instead seems to have become a part of the international press campaign against Pakistan's nuclear programme."
Dawn, the English-language daily that often gives voice to the Pakistani establishment, reports that opposition political leaders in the country say the sacking of Khan will cause "irreparable damage to the country's integrity."
The press in India, Pakistan's South Asian nuclear rival, turns a critical eye on the U.S. role over three decades. The Times of India goes back to the early 1980s, when Pakistan, like Saddam Hussein's Iraq, was a quietly favored U.S. ally.
As correspondent Syed Saleem Shahzad notes in the Asia Times, the U.S. Congress cleared the way for Pakistan's nuclear program. In 1981 the Congress, under pressure from Ronald Reagan's White House, voted to formally exempt Pakistan from U.S. laws prohibiting aid to any non-nuclear country engaged in illegal procurement of equipment for a nuclear weapons program. The Pakistani government also won a six-year aid package from the United States worth $3.2 billion. Free from the threat of sanctions, Pakistan conducted a cold test at a small-scale nuclear reprocessing plant in 1982. From there, the so-called Islam bomb began to grow.
Pakistan proceeded to spend some $10 billion developing a nuclear arsenal, say the editors of the Times of India. The money came from Libya, Saudi Arabia, Iraq, the United Arab Emirates and the depositors of the BCCI (Bank of Credit and Commerce International), which became notorious in the early 1990s for myriad criminal activities. The bank, say the editors of the Times of India, was founded by a Pakistani and operated freely in the Persian Gulf oil enclave of Dubai. It is inconceivable, they argue, that Western intelligence agencies didn't know all about this black market.
In the early 1990s, Khan began selling his technological prowess to other parties, enabling him to amass substantial properties in Pakistan as well as building a hotel in the African city of Timbuktu, according to numerous reports.
The "fabulous" Hendrina Khan Hotel, named after Khan's Dutch wife, was one of dozens of the scientist's business undertakings investigated by Pakistani intelligence officials, according to the The Indian Express.
Rajesh Mishra, a New Dehli-based defense analyst writing for the Hindustan Times, says the danger of nuclear proliferation Pakistan poses remains "alarmingly high."
"Discoveries that some members of Pakistan's scientific community are under the influence of extreme ideologies further raise the fear of sensitive information, technology or material falling into rogue hands," he writes.
Abdul Qadeer Khan himself once said: "All western countries, including Israel, are not only the enemies of Pakistan but, in fact, of Islam.'"
The Indian daily notes that one leading Pakistani physicist Bashir-uddin Mahmood, had several meetings in August 2001 with Osama bin Laden.
The Indian editors pose some hard questions about the realities of the international nuclear black market.
"Is it possible that the [Pakistani] scientists involved in State-managed clandestine deals overreached the arrangement of cooperation? "
"If so, was it a planned move [on the part of the Pakistani and U.S. governments] to overlook this extended relationship?"
They answer that question with another question:
"Or was the Pakistan government unable to question the illegitimate affairs within secret arrangements that involved a scientist like Khan?"
In other words, was the United States totally clueless while a Pakistani scientist supplied nuclear technology to Iran and North Korea?
? 2004 Washingtonpost.Newsweek Interactive
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Iranians Don't Want To Go Nuclear
By Karim Sadjadpour
Tuesday, February 3, 2004; Page A19
Do the people of Iran want the bomb? Iran's recent decision to allow for tighter inspection of its nuclear facilities -- which Iran says are for civilian purposes -- was hailed by Iranian and European officials as a diplomatic victory, while analysts and officials in Washington and Tel Aviv continue to be wary of Tehran's intentions. But despite the attention given to Iran's nuclear aspirations in recent months, one important question has scarcely been touched on: How do the Iranian people feel about having nuclear weapons?
Iranian officials have suggested that the country's nuclear program is an issue that resonates on the Iranian street and is a great source of national pride. But months of interviews I have done in Iran reveal a somewhat different picture. Whereas few Iranians are opposed to the development of a nuclear energy facility, most do not see it as a solution to their primary concerns: economic malaise and political and social repression. What's more, most of the Iranians surveyed said they oppose the pursuit of a nuclear weapons program because it runs counter to their desire for "peace and tranquility." Three reasons were commonly cited.
First, having experienced a devastating eight-year war with Saddam Hussein's Iraq that took the lives of hundreds of thousands of their compatriots, Iranians are opposed to reliving war or violence. Many Iranians said the pursuit of nuclear weapons would lead the country down a path no one wanted to travel.
Two decades ago revolutionary euphoria was strong, and millions of young men volunteered to defend their country against an Iraqi onslaught. Today few Iranians have illusions about the realities of conflict. The argument that a nuclear weapon could help serve as a deterrent to ensure peace in Iran seemed incongruous to most. "If we want peace, why would we want a bomb?" asked a middle-aged Iranian woman, seemingly concurring with an influential Iranian diplomat who contends that a nuclear weapon "would not augment Iran's security but rather heighten its vulnerabilities."
Second, while a central premise of Iran's Islamic government from the time of its inception has been its steadfast opposition to the United States and Israel, for most Iranians no such nemeses exist. Iran's young populace -- more than two-thirds of the country is younger than 30 -- is among the most pro-American in the Middle East, and tend not to share the impassioned anti-Israel sentiment of their Arab neighbors. While the excitement generated on the Indian and Pakistani streets as a result of their nuclear detonations is commonly cited to show the correlation between nuclear weapons and national pride, such a reaction is best understood in the context of the rivalry between the two countries. The majority of Iranians surveyed claimed to have little desire to show off their military or nuclear prowess to anyone. "Whom would we attack?" asked a 31-year-old laborer, echoing a commonly heard sentiment in Tehran. "We don't want war with anyone."
Finally, many Iranians, youth in particular, are opposed to the Islamic republic's becoming a nuclear power because they believe it would further entrench the hard-liners in the government. "I fear that if these guys get the bomb they will be able to hold on to power for another 25 years," said a 30-year-old Iranian professional. "Nobody wants that." In particular some expressed a concern that a nuclear Iran would be immune to U.S. and European diplomatic pressure and could continue to repress popular demands for reform without fear of repercussion.
At the same time, most Iranians -- including harsh critics of the Islamic regime -- remain unconvinced by the allegations that their government is secretly pursuing a nuclear weapons program. Many dismiss it as another bogeyman manufactured by the United States and Israel to further antagonize and isolate the Islamic regime. "I don't believe we're after a bomb," said a 25-year-old Tehran University student. "The U.S. is always looking for an excuse to harass these mullahs." A recently retired Iranian diplomat who said he is "strongly critical" of the Islamic government agreed with this assessment, saying Iran's nuclear program "is neither for defensive nor offensive purposes . . . It's only for energy purposes."
I draw two lessons from this. First, the European-brokered compromise on Iran's nuclear program, which appealed to reformists and pragmatists within the Iranian government, was also a victory of sorts for the Iranian people, who are eager to emerge from the political and economic isolation of the past two decades and are strongly in favor of increasing ties with the West. A blatant lack of cooperation with the international community would not have been well-received domestically.
Second, a more aggressive reaction by the international community -- a U.S. or Israeli attempt to strike Iran's nuclear facilities -- could well have the unintended consequence of antagonizing a highly nationalistic and largely pro-Western populace and convincing Iranians that a nuclear weapon is indeed in their national interests. Such a reaction would be disastrous for U.S. interests in the region, especially given Iran's key location between Iraq and Afghanistan.
Western and Israeli diplomats and analysts should know that the ability to solve the Iranian nuclear predicament diplomatically has broad implications for the future of democracy and nonproliferation in Iran and the rest of the Middle East. The goal is to bring the Iranian regime on the same page with the Iranian people. A non-diplomatic attempt to destroy Iran's nuclear facilities could do precisely the opposite.
The writer, an analyst with the International Crisis Group, is a visiting fellow at the American University of Beirut.
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U.S. Treads Carefully With Libya
By Robin Wright
Washington Post Staff Writer
Tuesday, February 3, 2004; Page A14
The United States is scheduled to open a political dialogue with Libya on Friday in London, with the Bush administration also considering sending a State Department envoy to Tripoli to discuss diplomatic issues with senior Libyan officials, U.S. officials said yesterday.
But the Bush administration is split over the next steps to take with the government of Moammar Gaddafi, with the Pentagon resisting major reciprocal gestures in response to Tripoli's agreement to surrender its weapons of mass destruction, the officials added.
Secretary of State Colin L. Powell said yesterday that Libya's cooperation warranted deepening the level of engagement through "political openings and developments," as promised by President Bush and British Prime Minister Tony Blair when they announced Tripoli's agreement to hand over all equipment and data for nuclear, chemical and biological weapons.
"We've seen a fascinating sign of change in Libyan attitudes," Powell said in an interview with editors and reporters at The Washington Post.
"We've now had a couple weeks of action on removal and verification [of weaponry], and we've learned a lot, and it was appropriate at this point that we begin a political dialogue to see what lies ahead. We're still removing material and we're still verifying, but it is a fundamentally changed situation with respect to Libya."
Assistant Secretary of State William Burns and British officials will meet with their Libyan counterparts to discuss the next steps. One possibility is to lift the ban on Americans traveling to Libya once Libya completes the dismantling of its weapons programs, U.S. officials said. Pentagon policymakers are balking, however, at other steps that U.S. officials had thought were in the pipeline. And they are actively opposed to taking Tripoli off the U.S. list of state sponsors of terrorism, which comes out annually in the spring.
"There's a cold wind blowing on a number of forward-leaning, reciprocal moves that we thought we'd queued up. And there's outright opposition to removing Libya from the list of the state sponsors of terrorism," said a well-placed U.S. official who spoke on the condition of anonymity.
Although the State Department issues the list, making any changes to it involves an interagency decision, and Pentagon opposition could kill prospects of formal removal of Libya this year, U.S. officials said. Some officials and Libya experts are concerned that failing to provide the promised diplomatic carrot could frustrate and disillusion officials in Tripoli who encouraged cooperation with the United States and Britain.
On other countries, Powell indicated that the strongest prospect for removal from the terrorism list may be Sudan, which hosted al Qaeda leader Osama bin Laden in the 1990s. Powell said he hopes negotiations later this month to end Sudan's civil war can produce agreement on the disputed oil-rich area of Abyei, the last major hurdle. A formal peace accord would be the key in getting Sudan off the list, U.S. officials say.
But Powell also said Syria is even further away than it was last year, after failing to respond to concerns he outlined during talks with President Bashar Assad in Damascus. "They started doing a few things, but it wasn't adequate," he said.
Powell said the time had come for the Syrians to "take a hard look" at what is happening in the region "and see whether or not they want to modify some of their policies."
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>> PROGRESS NOTES...
Tax Cuts and Savings Plans
Proposal Would Change Pension Rules, Retirement Accounts
By Albert B. Crenshaw
Washington Post Staff Writer
Tuesday, February 3, 2004; Page A05
The Bush administration yesterday rolled out an array of tax cuts, savings incentives, loophole closers and collection initiatives that officials said would encourage investment, promote trade, combat abuse and simplify the tax laws.
The proposal, outlined by Treasury Department officials, would also make it easier for companies that operate traditional pension plans to convert them to "cash balance" plans -- a process that has stirred heated controversy in recent years
If enacted in its entirety, the administration's tax plan would cost the government $1.24 trillion over 10 years -- almost $1 trillion of that from extending the tax cuts passed by Congress last year, and making permanent both those cuts and others enacted in 2001 and scheduled to expire after 2010.
Many of the items on the list presented yesterday by the Treasury Department have been proposed before, including lifetime and retirement savings accounts (LSAs and RSAs), in which Americans could deposit $5,000 each year. Anyone, including children, could have an LSA, and anyone with wages could have an RSA. Contributions would not be tax-deductible, but earnings inside the account would not be taxed, and withdrawals would generally be tax-free.
Assistant Treasury Secretary Pamela F. Olson said the contribution amounts were reduced in this year's proposal, from $7,500 last year, to meet criticism that they would undermine existing retirement plans, especially in small businesses.
The proposal would also simplify the present system of 401(k) and similar employer-sponsored retirement plans by consolidating them all into a single, uniform type of plan called an employer retirement savings account, or ERSA. And it would create individual development accounts (IDAs) for low-income individuals, that would give sponsoring financial institutions a 100 percent tax credit for matching savings contributions of up to $500.
The proposals came under immediate attack from Democrats in Congress, who cited the ballooning national debt and a federal deficit that could reach $521 billion this year. Sen. Tom Harkin (D-Iowa) called the Bush budget "sadly out of touch" for asking for "another $1.2 trillion in tax cuts for the wealthy."
The proposal on cash-balance plans, though, seems likely to get attention on Capitol Hill. Last month, the legislators asked the Treasury Department for a legislative proposal on these pensions, and Olson said officials had already been working on one and thus were able to include it in the budget.
Traditional pensions tend to reward long-serving employees but do not do as well for those who change jobs frequently. Cash-balance plans are more easily portable but may provide smaller pensions to long-serving workers. When a company converts, older workers sometimes find they will ultimately receive smaller pensions, and in some cases see benefits cease to increase for years while the formula for the new plan catches up with the old one -- a process dubbed "wear-away."
The administration would deem cash-balance plans to be not age-discriminatory as long as certain tests were met, something corporate sponsors have pushed for since a recent court case ruled they were discriminatory. The proposal also would allow companies to convert if they gave workers benefits during the five years after conversion that were at least as valuable as those they would have earned under the old plan. It would also ban "wear-away."
Any company that improperly reduced benefits would be charged an excise tax equal to any savings it realized from the cuts. But companies that were losing money and also operating underfunded pension plans would not be subject to the tax, potentially rendering the protections moot for some workers, officials said.
Private pension experts were cautious in reacting to the pension proposal, since many of its details have not been disclosed or even worked out.
"Treasury deserves a lot of credit for trying to move the discussion forward. There's general agreement that the survival of cash-balance plans is fairly integral to the future survival of the [traditional pension] system," said Kyle Brown of benefits consultant Watson Wyatt Worldwide. He and others expressed reservations about how the plan might work in practice.
Also in the Treasury plan are a wide range of tax cuts, including deductions for charitable contributions by non-itemizers, a refundable tax credit for the purchase of health insurance and an exclusion of the value of employer-provided computers for telecommuters.
It would also crack down on leasing deals between taxpayers, who get deductions, and "tax-indifferent parties," such as foreign entities and U.S. subway systems and municipal water authorities, who aren't taxed on their income. The Equipment Leasing Association promptly termed that a tax increase.
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>> STATE DEPT. COMES AROUND?
'The Right Thing to Do'
Tuesday, February 3, 2004; Page A15
Excerpts from an interview yesterday with Secretary of State Colin L. Powell by Washington Post reporters and editors.
Q Do you still feel confident that military invasion [of Iraq] was the right thing to do?
A Yes, I think it was the right thing to do, and I think history will demonstrate that. . . . Let me just go right into kind of the issue of the day, which is weapons of mass destruction. . . .
What was the threat that we talked about [before the war] with respect to weapons of mass destruction? And to talk about a threat, you have to look at the intent and you have to look at capabilities, and two of them together equals a threat.
And with respect to intent, Saddam Hussein and his regime clearly had the intent -- they never lost it -- an intent that manifested itself many years ago when they actually used such horrible weapons against their enemies in Iran and against their own people. That's a fact and that's a statement of his intent. . . .
There are different levels of capability. One level is that you have the intellectual ability, you have people who know how to develop such weapons and you keep training such people and you keep them in place and you keep them working together. He did. . . . And also you keep in place the kind of technical infrastructure, labs and facilities. . . . Did he do that? Yes, he did that.
And then the final level of capability is the one that's started getting all the attention now, is: Did it all come together and produce for everybody to see and be afraid of, an actual stockpile over there? And that is what is at question and that is what we have not found and that is what the various committees will be looking at. . . .
A lot has been said about [former U.S. weapons inspector David] Kay . . . and he did say, with respect to stockpiles, we were wrong, terribly wrong. . . . But he also came to other conclusions that deal, I think, with the intent and with capability which resulted in a threat the president felt he had to respond to. . . .
And there is no doubt in my mind that if Iraq had gotten free of the [United Nations] constraints and if we had gone through another year of desultory action on the part of the United Nations . . . there's no doubt in my mind that intention and capability was married up . . . and they would have gone to the next level and reproduced these weapons. Why wouldn't they? That was always [Hussein's] intention.
If CIA Director George Tenet had said a year ago today, if U.S. weapons inspector David Kay had said, that there are no stockpiles, would you still have recommended the invasion?
I don't know. I don't know, because it was the stockpile that presented the final little piece that made it more of a real and present danger and threat to the region and to the world. But the fact of the matter is the considered judgment of the intelligence community, represented by George Tenet, and also independently by the United Kingdom and other intelligence agencies, suggested that the stockpiles were there. I can't go back and give you the hypothetical as to what I might have done.
But the absence of the stockpiles . . . .
The absence of a stockpile changes the political calculus. It changes the answer you get, the formula I laid out. But the fact of the matter is that we went into this with the understanding that there was a stockpile and there were weapons, and for my own personal perspective, you know, I was the chairman for the first Gulf War, and we went in expecting to be hit with chemical weapons. We weren't hit with chemical weapons, but we found chemical weapons. And so it wasn't as if this was a figment of someone's imagination. . . . And so what assumption would one make some nine years after the inspectors had been moved, had been gone for four years? I think the assumption to make and the assumption that we came to, based on what the intelligence community gave to us, was that there were stockpiles present.
When you went over to the [CIA] to get more information about the things you were going to say to the United Nations [in a speech in February 2003], did you, as we have heard, push them to tell you what their sources for the conclusions were? . . . When you look back on that experience, did you push hard enough? Did you get, do you think, forthright answers?
[In meetings with intelligence officials] what I wanted to know is what information could I present that you guys feel comfortable to declassify and that you will give me sources and methods on, and that you're absolutely sure was multi-sourced, because I didn't want to put something out that would be shot down later, or that same afternoon, by some other intelligence agency or by the Iraqis. And so we really went through it. And I only used that information that I was confident the [Central Intelligence] Agency stood behind. . . . It was multi-sourced, and it reflected the best judgments of all of the intelligence agencies that spent that four days out there with me. And there wasn't a word that was in that presentation that was put in that was not totally cleared by the intelligence community.
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SPIEGEL ONLINE - 03. Februar 2004, 16:25
URL: http://www.spiegel.de/politik/ausland/0,1518,284788,00.html
Irakkrieg
Powell bekommt Skrupel
Colin Powell ist sich nicht mehr so sicher, ob die Entscheidung f?r den Irakkrieg richtig war. Wenn damals bekannt gewesen w?re, dass der Irak keine Massenvernichtungswaffen besitzt, h?tte er sich vielleicht nicht f?r den Feldzug gegen Saddam ausgesprochen, gestand der US-Au?enminister jetzt.
REUTERS
Au?enminister Powell
Washington - Auf die Frage, ob er sich f?r den Krieg ausgesprochen h?tte, wenn bekannt gewesen w?re, dass der Irak keine Massenvernichtungswaffen hatte, antwortete Powell: "Ich wei? es nicht, weil (Waffen)-Lager das letzte entscheidende Glied waren, das es mehr zu einer echten und akuten Gefahr f?r die Region und die Welt machte."
In dem Interview der "Washington Post" verteidigte der Au?enminister zugleich die Politik der US-Regierung. Er erkl?rte, der gest?rzte irakische Pr?sident Saddam Hussein habe die Absicht gehabt habe, biologische und chemische Waffen zu erwerben. Die Geschichte werde zeigen, dass die Entscheidung zum Krieg richtig gewesen sei.
Powell hatte in seiner Rede vor dem Uno-Sicherheitsrat am 5. Februar 2003 detaillierte Informationen ?ber angebliche irakische Massenvernichtungswaffen vorgelegt und damit der Welt die Begr?ndung f?r einen Krieg gegen den Irak pr?sentiert. Wie die "Post" berichtete, versuchte Powell in dem Interview nun die damalige Begr?ndung mit der heutigen Realit?t in Einklang zu bringen. Er gestand aber ein, dass die "Abwesenheit von (Waffen)-Lagern die politische Berechnung ver?ndere".
Der Minister reagierte mit dem halbst?ndigen Interview auf die Erkenntnisse des zur?ckgetretenen US-Chefwaffeninspektors David Kay, der dem Kongress in Washington k?rzlich erkl?rt hatte, dass Bagdad zu Kriegsbeginn wahrscheinlich keine Massenvernichtungswaffen besessen habe. Pr?sident George W. Bush hatte am Vortag erstmals einer Untersuchung der Geheimdienstinformationen ?ber angebliche irakische Massenvernichtungswaffen zugestimmt. Bush best?tigte, dass er eine unabh?ngige Kommission einberufen werde.
? SPIEGEL ONLINE 2004
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SPIEGEL ONLINE - 03. Februar 2004, 15:12
URL: http://www.spiegel.de/politik/deutschland/0,1518,284775,00.html
Deutsche AKW
Terroristen k?nnen GAU ausl?sen
Die Umweltschutzorganisation BUND schl?gt Alarm: Nach einem bislang unver?ffentlichten Gutachten der Gesellschaft f?r Reaktorsicherheit k?nnten Terroristen durch einen gezielten Flugzeugabsturz auf ein Kernkraftwerk eine Katastrophe ausl?sen, die den GAU von Tschernobyl in den Schatten stellen w?rde.
AP
Besonders gef?hrdet: AKW Obrigheim
Berlin -Der BUND sieht sich in dieser Ansicht durch ein Gutachten der Gesellschaft f?r Reaktorsicherheit (GRS) best?tigt. Eine vom Umweltministerium erstellte Zusammenfassung dieser bisher nicht ver?ffentlichten Studie hat der BUND heute vorgelegt. Damit solle die ?ffentlichkeit ?ber die Risiken des Weiterbetriebs der Kernkraftwerke aufgekl?rt werden.
"Terroristen sind in der Lage, an jedem Atomstandort in Deutschland einen Super-GAU auszul?sen. Auf Grund der vielfach h?heren Bev?lkerungsdichte k?nnen seine Folgen weit katastrophaler sein als in Tschernobyl", sagte die BUND-Vorsitzende Angelika Zahrnt. Bundesregierung und Bundesl?nder w?ssten seit langem von dieser Gefahr und blieben dennoch eine Erkl?rung schuldig, welche Gegenma?nahmen sie ergreifen wollen.
Besonders gef?hrdet sind nach BUND-Angaben die neun ?lteren Atomanlagen Obrigheim, Stade, Biblis A und B, Brunsb?ttel, Isar 1, Philippsburg 1, Neckar 1 und Unterweser. Hier k?nnte schon der Absturz eines kleineren Verkehrsflugzeugs die Katastrophe ausl?sen. Beim Absturz eines gro?en Flugzeugs auf einen Atomreaktor k?nnen aber auch die zehn neueren AKW au?er Kontrolle geraten.
? SPIEGEL ONLINE 2004
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>> GREENSPAN WATCH...
Magic Test
The estimable Alan Greenspan has a tightrope to walk.
By Larry Kudlow
Out on the campaign trail, Gov. Howard Dean has criticized Federal Reserve chairman Alan Greenspan for being "too political." Dean argues that Greenspan should be harping on Bush budget deficits and opposing tax cuts. Like so many Deanisms, this charge is whacky. Greenspan was in fact an obstacle to Bush's tax cut last May. At the time, the estimable Fed leader was worrying publicly about budget deficits, even though his emphasis has always been on spending restraint rather than higher taxes.
Dean's Fed attack may have legs, but for different reasons. The little-known fact is that Greenspan's job as chairman of the Federal Reserve Board is up for renewal this summer. While his seat as a board member doesn't expire until 2006, a decision on his reappointment is scheduled to be made in six months.
As events would have it, the Fed's most recent policy statement on interest rates removed the term-of-art phrase "considerable period" and inserted in its place the word "patient." Financial markets took this to mean a Fed rate hike has been brought a little nearer. Actually, futures markets are predicting a minor one-quarter-of-a-percentage-point increase in the fed funds policy rate sometime this summer. That's about when President Bush will decide on Greenspan's reappointment fate.
But Greenspan's reworking of the Fed's policy language may have been a brilliant move. Just the mere hint that a rate hike could come in mid-2004, instead of next year, caused the beleaguered U.S. dollar to appreciate. This in turn knocked the gold price down nearly $25 to around $400 -- a much more comfortable level, suggesting a diminished risk of higher future inflation. And while broad commodity indexes have had quite a run, these raw-material indicators are simply recouping prior losses and responding to huge industrial demands from the economic booms in China, the rest of Asia, and the U.S.
Yes, the stock market has been selling off since the announced change in Fed rhetoric. But after a continuous rally since early November, stocks were probably due for a minor correction anyway.
Keep in mind, part of the reason why the Fed is preparing us for an earlier rate rise is the positive economic story. Second-half real growth for 2003 has come in above 6 percent, with more of the same expected this year. Business profits are also coming in above expectations, productivity is gaining rapidly, and thanks to President Bush's last round of tax cuts, business investment spending is surging. Even exports are coming on strong.
President Bush told a White House meeting of economists that "the U.S. economy is strong and getting stronger," just as he urged Congress to make his tax cuts permanent and pledged to cut the deficit in half in five years. There's nothing on the Fed's plate that will disrupt this scenario -- certainly not a tiny rate hike this summer.
In political terms, however, the stock market looms as an important influence on the election. The risk of even a minor Fed rate hike a few months before the November tally might lead investors to assume that a string of interest-rate increases are coming. With 95 million shareholders in the U.S., and at least 164 million stock market accounts (up from only 20 million in 1988, according to the Investment Company Institute), there can be no doubt that the market's mood running up to November will have a big impact on the voting-booth decisions of investors.
In the 2000 presidential race, stocks slumped most of the year. The onset of the bear market substantially undermined the solid Clinton-Gore economic growth record, and helped elect George W. Bush. This time, any decisive market losses -- such as a 15 percent downward correction -- could jeopardize Bush's reelection shot, even though he is clearly the pro-investor candidate. How could he not be? His large economy-boosting tax-cuts on dividends, capital gains, upper-bracket income, and small owner-operated businesses are exactly the tax measures that John Kerry and the other Democrats intend to repeal.
So, this is the political tightrope that Alan Greenspan will have to walk. His renomination at the Fed as well as the election itself may be up for grabs.
And yet, with core inflation less than 1 percent, the economy on a tear, and job-creation set to explode, the question remains: Is any Fed tightening necessary this year? Or, if the Fed decides that a minor rate hike is necessary this summer, will they be able to sell it in a non-threatening way, so as to not upset the politically powerful stock market?
The so-called Greenspan Standard will be put on full public display during the political season. The Fed chairman's magic touch will be tested as never before.
-- Larry Kudlow, NRO's Economics Editor, is CEO of Kudlow & Co. and host with Jim Cramer of CNBC's Kudlow & Cramer.
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>> FBI WATCH...
The Technology Trade
By Konrad Trope, Esq.*
February 2004
A New Chapter in the War on Terrorism: The FBI Wants Expanded Wiretapping Authority
The debate over government interception of Internet communications has expanded to a new technology, namely Voice over Internet Protocol ("VoIP") transmissions. Indeed, representatives of the FBI's Electronic Surveillance Technology Section in Chantilly, Virginia have been meeting secretly with the Federal Communications Commission since July, 2003, exploring ways to provide the FBI with more regulatory authority to "wiretap" Internet communications, and in particular VoIP transmissions. [i] The FBI along with the U.S. Drug Enforcement Administration and the U.S. Department of Justice want VoIP providers declared as "telecommunications carrier[s]" under the Federal Communications Act of 1996 and the Communications Assistance for Law Enforcement Act of 1994 ("CALEA").[ii] These three federal law enforcement organizations declared that if left unregulated, VoIP would provide a means of communications whereby "terrorists, spies, and criminals ... [can] most likely evade lawful electronic surveillance." [iii]
Voice Over Internet Protocol allows analog voice signals to be digitized into packets of data, sent over a series of networks, and reassembled at the other end. [iv]. In other words, telephone calls that have traditionally, since the late 19th century, been made through Public Switching Technology Networks ("PSTN") are now initiated, transmitted and received through computer networks, and thereby avoid long distance telephone charges. The technology, introduced in 1995, stumbled along until recent improvements in the sound quality and transmission reliability have made "phone carriers ...practically tripping over each other to announce aggressive VoIP strategies aimed at both consumers and businesses." [v]
Today, VoIP transmissions constitute up to ten percent of all calls made in the United States, with estimates of up to 2.5 million U.S. subscribers.[vi] By 2006, it is anticipated that well over 7 million VoIP units will be in circulation.[vii]
The most popular reason that businesses and consumers give for switching to VoIP is cost savings. Flat rate service plans, including unlimited local and long distance calls range from $20-$40, which is 20-40% lower than service plans being offered by PSTN companies. The main reason for the cost savings is that VoIP transmissions are not regulated like regular telephone service. VoIP providers therefore do not have to pay the same taxes and access fees that are passed onto consumers. [viii]
A technological benefit of VoIP is more efficient use of the broadband cable, which currently carries half of all VoIP transmissions. Voice, data (e.g., faxes, e-mail, instant messaging), and video can all be transmitted simultaneously through broadband cable, record an outgoing message and leave it in their customers' voice mail inboxes with one click, instead of repeating the same message several times a day. Moreover VoIP transmissions can be recorded, labeled, indexed, stored, and retrieved when necessary. [ix] These technological benefits have made VoIP the new "target" of the Federal Government's War on Terrorism.
Under existing federal wiretapping laws, the FBI already has the ability to seek a court order to conduct surveillance of any broadband user through its DCS 1000 system, previously called Carnivore. [x] But federal law enforcement agencies worry that unless Internet service providers, and in particular VoIP providers, offer surveillance hubs based on common standards, lawbreakers can evade or, at the very least, complicate surveillance by using VoIP providers such as Vonage, Time Warner Cable, Net2Phone, 8X8, deltathree and Digital Voice. [xi]
The origins of this debate date back nine years, to when the FBI persuaded Congress to enact a controversial law called the Communications Assistance for Law Enforcement Act ("CALEA"). [xii] The 1994 legislation requires that telecommunications services rewire their networks to provide police with guaranteed access for wiretaps. The legislation also empowered the FCC to issues regulations defining what categories of companies were subject to the broad sweeping legislation.[xiii] So far only traditional PSTN (analog) companies and wireless phone services have been subject to CALEA.
The FBI now has taken the position that the combination of the federal wiretap laws, originally enacted in 1964, and amended numerous times since,[xiv] along with CALEA, give it the authority to wiretap DSL and other types of broadband services, including VoIP. [xv]
Critics are worried about privacy issues. Under CALEA, "telecommunications services" as defined under CALEA and the 1994 Federal Communications Act [xvi] are required to modify their equipment so that law enforcement officials can effectively "wiretap" both data and voice transmissions. [xvii] In particular, since VoIP represents the "blending" of data and real time voice transmissions, privacy advocates worry that VoIP "wiretapping" will lead to "dataveillance", where data such as location information will be routinely collected for surveillance, without any investigatory predicate.[xviii] Moreover, neither VoIP providers nor the FBI can explain what will be done to ensure that private parties do not engage in illegal monitoring of private citizens, gaining access to privileged information, confidential business/trade secrets, or even sensitive medical information.[xix]
Moreover, the FBI has said that if broadband providers cannot isolate specific VoIP calls to and from individual users, they must give police access to the "full pipe"--which, therefore, inevitably would include hundreds or thousands of customers who are not the target of the investigation.[xx] This technological short-coming of VoIP "wiretapping" would inevitably lead to over-inclusive sweeps of conversations and data transmissions that are not the "target" of any government probe.
Some companies like MetaSwitch and Cisco Systems, Inc. have already cooperated with the FBI's request for CALEA compliance to make their VoIP hardware products "surveillance friendly." These two companies have "developed backdoor technology in their VOIP products that enables the FBI to eavesdrop at will." [xxi] Yet segregating particular voice packets not the target of a search warrant still presents technological hurdles to many VoIP providers, leaving many VoIP transmissions subject to interception despite falling outside of the scope of the federal search warrant that authorized the interception.
On the other hand, not all Internet service providers see themselves as "adverse" to the interests of the FBI. EarthLink, for instance, wants CALEA and the Federal Wiretapping Statutes applied to VoIP calls. If VoIP calls escape being subjected to this expanded regulatory scheme, it would mean that VoIP stays "unregulated" as far as the FCC is concerned. Such de-regulation of Internet services, would allow the Baby Bells such as Verizon and BellSouth to raise the rates charged to ISP's, such as EarthLink, for access to the copper wire that runs to subscribers' homes and businesses. [xxii]
EarthLink, as an ISP provider has, therefore, admitted that it sees "the FBI as an ally of sorts," said David Baker, EarthLink's vice president for law and public policy. [xxiii]
The federal courts are split on this issue of expanding government power to regulate [and therefore intercept Internet transmissions], and in particular VoIP. The Ninth Circuit Court of Appeals, for instance, in October, declared, to the delight of Internet Service Providers (ISP's) such as EarthLink, that the cable operators to the extent that their broadband services use the Internet, are telecommunications providers, making them subject to state and federal regulations, including FCC regulations. [xxiv] In the same month, a federal district judge in Minnesota issued an injunction against the Minnesota Public Utilities Commission, barring it from seeking to impose tariffs on VoIP provider Vonage. [xxv] Consequently, the Minnesota Federal District Court decision allows Vonage to escape being subjected to the FBI's request to the FCC to expand the reach of CALEA. [xxvi]
CONCLUSION
Everything is pointing to the exponential growth of VoIP use. VoIP usage might even exceed the prediction that by 2007, seventy-five percent of all voice traffic will travel over the Internet. Thus, it appears that the FBI's request for expansion of its "wiretapping" authority versus and the FCC Chairman Michael Powell's stated desire to further unleash the Internet, making it free from government regulation are set on a collision course.
The same statutes that allow for wiretapping also authorize other government activity such as taxation of the Internet and the mandating of services such as 911, guaranteed access, remote area service, and service for the hearing impaired. On the other hand, if the Internet and in particular VoIP is ultimately declared to be free from the string of regulations and tariffs that surround traditional PSTN providers, then government officials seeking broader "wiretapping" authority may be stymied in their efforts to intercept VoIP transmissions and neutralize this new form of a national security threat.
* Konrad Trope is a cyberspace and intellectual property attorney with a national practice, based in Los Angeles. His practice focuses on cyberspace, intellectual property and entertainment litigation, transactions, and regulatory counseling. He is a member of the ABA Cyberspace Committee and a member of the California State Bar Cyberspace Committee. He can be reached at ktrope@earthlink.net .
Endnotes:
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[i] See 18 U.S.C. ?? 2510, 2511, 2518; Declan McCullagh, FBI targets Net phoning, CNET News.com, July 29, 2003 at http://news.com.com/2100-1028_3-5056424.html?tag=mainstry ; Joint Comments of U.S. Department of Justice, U.S. Drug Enforcement Administration, and the Federal Bureau of Investigation, December 15, 2003, submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://ww.fcc.gov/voip/materials-submit.html.031215VOIPForum .
[ii] See 47 U.S.C. ??153, 1000 et. seq.; Joint Comments of U.S. Department of Justice, U.S. Drug Enforcement Administration, and the Federal Bureau of Investigation, December 15, 2003, submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://ww.fcc.gov/voip/materials-submit.html.031215VOIPForum; LightReading.com, FBI Protests VoIP Approach, January 9, 2004 at http://www.lightreading.com/document.asp?site=lightreading&doc_id=45695 .
[iii] Joint Comments of U.S. Department of Justice, U.S. Drug Enforcement Administration, and the Federal Bureau of Investigation, December 15, 2003, submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://ww.fcc.gov/voip/materials-submit.html.031215VOIPForum.
[iv] Jeff Tyson, How IP Telephony Works, howstuff works.com, at http://computer.howstuffworks.com/ip-telephony1.htm , telephony2.htm, telephony3.htm, and telephony4.htm, (last visited on December 4, 2003; Voice Over Internet Protocol, International Engineering Consortium Online Tutorial, at http://www.iec.org/online/tutorials/int_tele/ (last visited Nov. 16, 2003).
[v] Knowledge@Wharton, Behind VoIP's renaissance, Wharton School of the University of Pennsylvania, January 17, 2004.
[vi] Ben Charney, Free ride over for VoIP, CNET New.com, August 25, 2003 at http://news.com.com/2100-1037-5067465.html?tag=n1 .
[vii] Frost & Sullivan, VoIP Analysis, October 16, 2003, VoIPWatch.com at http://www.voipwatch.com/article.php3?sid=101 .
[viii] Michael Powell, Chairman Federal Communications Commission, The Age of Person Communications: Power to the People", January 14, 2004 Speech to the National Press Club, Washington, D.C.; Charles M. Davidson, Florida Public Service Commission, VoIP, FCC Forum--December 1, 2003 at http://www.fcc.gov/voip/presentations/davidson.ppt ; Knowledge@Wharton, Behind VoIP's renaissance, Wharton School of the University of Pennsylvania, January 17, 2004
[ix] The Siemon Company, White Paper: Video over IP, www.siemon.com , August 2003; Cisco Systems, Inc., White Paper: The Strategic and Financial Justification for IP Communications, 2002.
[x] Declan McCullagh, FBI targets Net phoning, CNET News.com, July 29, 2003 at http://news.com.com/2100-1028_3-5056424.html?tag=mainstry;
[xi] Id.; see also Joint Comments of U.S. Department of Justice, U.S. Drug Enforcement Administration, and the Federal Bureau of Investigation, December 15, 2003, submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://ww.fcc.gov/voip/materials-submit.html.031215VOIPForum
[xii] See 47 U.S.C. ??1000, et. seq.
[xiii] Id.
[xiv] See 18 U.S.C. ??2510, et. seq.
[xv] Joint Comments of U.S. Department of Justice, U.S. Drug Enforcement Administration, and the Federal Bureau of Investigation, December 15, 2003, submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://ww.fcc.gov/voip/materials-submit.html.031215VOIPForum
[xvi] 47 U.S.C. ?? 153, 1000 et. seq
[xvii] Id.
[xviii] Marc Rotenberg, Electronic Privacy Information Center Comments on VoIP, December 15, 2003 submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://www.fcc.gov/voip/comments/EPIC.txt
[xix] Id.
[xx] Declan McCullagh, FBI targets Net phoning, CNET News.com, July 29, 2003 at http://news.com.com/2100-1028_3-5056424.html?tag=mainstry; see also Joint Comments of U.S. Department of Justice, U.S. Drug Enforcement Administration, and the Federal Bureau of Investigation, December 15, 2003, submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://ww.fcc.gov/voip/materials-submit.html.031215VOIPForum
[xxi] LightReading.com, FBI Protests VoIP Approach, January 9, 2004 at http://www.lightreading.com/document.asp?site=lightreading&doc_id=45695
[xxii] See 47 U.S.C. ??251(c)(3) &(4)(A); Declan McCullagh, FBI targets Net phoning, CNET News.com, July 29, 2003 at http://news.com.com/2100-1028_3-5056424.html?tag=mainstry
[xxiii] Declan McCullagh, FBI targets Net phoning, CNET News.com, July 29, 2003 at http://news.com.com/2100-1028_3-5056424.html?tag=mainstry
[xxiv] Brand X Internet Services, et. al. v. FCC, 345 F3d 1120 (9th Cir. 2003)
[xxv] Vonage Holdings Corp. v Minnesota Public Utilities Commission, et. al., 290 F. Supp. 2d 993 (D. Minn. 2003)
[xxvi] Marc Rotenberg, Electronic Privacy Information Center Comments on VoIP, December 15, 2003 submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://www.fcc.gov/voip/comments/EPIC.txt
Please send all comments to practice@findlaw.com or give us your opinion at the Modern Practice discussion board.
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>> DEMS WATCH...
Issues of Civil Justice and Tort Reform:
What Role Will They Play in the Democratic Primaries?
By ANTHONY J. SEBOK
tsebok@findlaw.com
----
Monday, Jan. 26, 2004
The early stages of the Democratic presidential primary race have been marked by intense media scrutiny of the personalities of the candidates. Still, it is not too early to begin thinking about where they stand on the issues that matter to the voters and the party that the candidates seek to represent.
On certain "big" issues, such as the war in Iraq and the economy, it is easy to find out what the candidates think, although sometimes it is more difficult to figure out whether they actually disagree with each other. In this column, I will take a look at an issue that does not often get a lot of attention: civil justice and tort reform.
Tort reform may not be a "hot button" issue for many voters in New Hampshire or South Carolina. But it is a very important issue for some of the largest contributors to both parties.
The Democratic Party, especially, has become increasingly more dependent on contributions from members of the plaintiffs' bar. In fact, in my opinion, trial lawyers, in a sense, play the same role in the Democratic Party that the National Rifle Association plays in the Republican Party: The role of the eight hundred pound gorilla no one dares to disobey Even if a Democrat disagreed with the views of the American Trial Lawyers Association (ATLA), I think it would be very difficult for him or her to vote against its wishes.
Because tort reform is not an issue that wins primaries, the candidates have said very little on the subject so far. Still, a lot can be gleaned from their websites and, more importantly, their past statements and actions.
I am going to focus on the major four candidates who are currently leading in New Hampshire; I suspect that some or all of them will be the focus of the primaries until a winner emerges, or is selected in Boston.
Howard Dean's Views on Tort Reform
I begin with Howard Dean because he seems, at first glance, to be the candidate who, for personal reasons, would be ATLA's least favorite candidate. After all, he is a doctor married to a doctor. Last year doctors marched in front of state houses and went on strike in many states demanding tort reform and protection from trial lawyers.
Furthermore, as the website Overlawyered has pointed out, in 1988 then-Lieutenant Governor Dean published a letter in the New York Times that seemed to imply that he would support limitations of tort damages at both the state and federal level.
Presidential candidate Dean has moderated his views, however. The question is whether his current positions fall within the Democratic Party's conventional views on tort reform.
Fortunately, Dean's campaign website is unusual in that it has a section devoted to the candidate's position on medical malpractice. Dean notes that both patients and doctors are ill-served by the current liability system. Dean believes that the states should "discourage frivolous lawsuits while still holding the health care system accountable." This formula seems appealing but vague: The problem is that these two ideals often conflict in practice.
So what concrete state-levels reforms does Dean endorse? On his website, he mentions only "non-binding pre-litigation review" of malpractice suits by expert panels, and the use of arbitration panels as a last resort before litigation. However, these reforms have been adopted by many states already, and, unfortunately, while they are excellent ideas, they do not seem to have effectively addressed the concerns of physicians and tort reformers.
What about on the federal level? Dean says that he opposes the Republican federal medical malpractice reform bill, which would cap damages throughout the nation. Dr. Dean is to be applauded for having broken ranks with the AMA on this issue, although it is hard to tell whether his stand is principled or driven by a realistic understanding of who hold the pursestrings in his party.
In any event, Dean does endorse one federal reform that has been supported by the AMA. He calls for the passage of the Patient Safety and Quality Act, which was co-sponsored by Vermont's maverick ex-Republican Senator Jim Jeffords. This bill tries to promote patient safety by allowing doctors and hospitals to report medical "adverse events" to specially-designated organizations in confidence. The law is based on recent theoretical work by public health specialists who believe that fear of litigation is inhibiting the free flow of information that could be used to review and improve medical procedures.
While I think that the Patient Safety and Quality Act sounds like a good idea, it should come as no surprise that consumer groups, who are traditionally skeptical of any thing that might inhibit litigation, are suspicious of the act. Consumer Union, for example, has said that the bill "would make it nearly impossible for consumers to compare the quality of care provided by doctors and hospitals, as well as keep hospital infection rates from becoming public."
Thus, in this one area, Dr. Dean may have trumped the judgment of Candidate Dean -- alienating numerous consumers and patients, in order to aid doctors and the progress of medicine.
John Edwards's Views on Tort Reform
If Howard Dean might have appeared to be ATLA's least favorite candidate, John Edwards appears to be its poster child. John Edwards was, until he entered the Senate a few years ago, one of America's most successful trial attorneys. He made his fortune, in part, on trying very large medical malpractice suits.
John Edwards is to be credited for using his career as a plaintiffs' attorney as a device to build and bridge between liberalism and the individualism that appears to have led critical voters (especially Southern males) to vote Republican. This view has become very clear both from Edwards' book published last fall, Four Trials and an essay he published in Newsweek in response to their cover story criticizing the tort system. (I discussed the original article in a recent column.)
In his book and in his Newsweek essay, Edwards describes himself as a champion of the "old-fashioned" values of personal responsibility and just deserts. In his view, the doctors and corporations he sued "deserved" to be punished no more and no less than Willie Horton -- the famous parolee used by the Republicans to paint the Democrats as "soft on crime" -- did.
Furthermore, while Edwards is a vociferous critic of tort reform, he is willing to admit that the medical malpractice system has been abused by his fellow lawyers. On his campaign website he suggests, like Dean, that before a medical malpractice suit can be filed, a lawyer should be required to get an expert physician to certify that there may be a valid medical complaint. As I noted above, however, this type of expert-based reform is pretty weak stuff.
But then Edwards goes on to make a more daring suggestion. He suggests that a lawyer who brings three frivolous lawsuits should be forbidden from bringing another one for ten years. Constitutionally, this reform would probably have to be enacted on the state level -- outside of the President's bailiwick. Nonetheless (or, perhaps, for this reason), it's very smart of Edwards to support it..
The truly brilliant part of Edwards's proposal, is how it once again uses criminal justice rhetoric associated with the Republican Party. At the end of his proposal on sanctioning lawyers, Edwards says, "in other words, three strikes and you're out."
Later on, Edwards says the same thing about sanctioning doctors who have been proven to have committed malpractice. I have no idea whether Edwards really wants to adopt the "three strikes model" for professional malpractice, but the net effect of this language is to make it harder for his opponents to paint Edwards as a knee-jerk defender of the tort system.
John Kerry's Views on Tort Reform
John Kerry has been in the Senate longer than any of the other leading candidates, and so, along with Joe Lieberman, he has had the most opportunities to actually respond to national tort reform efforts. However, Kerry seems to have stayed on the sidelines as much as possible with regard to questions of civil justice.
Kerry voted for the 1995 Private Securities Litigation Reform Act, a Clinton-era limitation on the right to sue for federal securities fraud. The Act was passed in part because in the mid-90's, the Democratic Party was sensitive to the concerns of a new group of wealthy funders--Internet entrepreneurs who thought the class action plaintiffs' bar was unfairly targeting Silicon Valley.
Later, Kerry voted against the Common Sense Product Liability Reform Act of 1996. But that was unexceptional: Almost all of the Democratic Party (Lieberman excepted) opposed the Act.
Finally, and curiously, Kerry was absent for the vote to end the Democrats' filibuster of the Class Action Fairness Act, a major recent tort reform effort.
Kerry's website says nothing specifically about tort reform. But he does, in an oblique way, suggest that he wants to see more federal civil litigation in one area--RICO, the Racketeering-Influenced Corrupt Organizations Act. (RICO was enacted to address organized crime, but by its language may reach a number of different kinds of patterns of conduct involving criminal activity.) Kerry, who was once a prosecutor, suggests that one step he would take as president is to propose that RICO be expanded so that "investors who have lost money due to late-trading schemes" can sue in federal court to recover their losses.
Obviously, Kerry's view on RICO, in particular, does not tell us much, if anything, about his true feelings about civil litigation in general. What this view does tells us, though, is that Kerry understands that Americans are quite angry about corporate fraud.
Wesley Clark's Views on Tort Reform
For obvious reasons, Wesley Clark has had the least opportunity of all the other candidates to experience the civil justice system firsthand. Thus, it is very hard to predict from his background and past actions what, if anything, he thinks about the civil justice system.
Clark's website does, however, have a section devoted to civil justice. It reports that Clark opposes the major recent Republican tort reform efforts to cap medical malpractice awards and to shift class actions from the state to the federal courts.
The site suggests that Clark, or whoever is advising him, understands what is at stake in debates over tort reform. It notes that President Bush described the medical malpractice system as a lottery where plaintiffs enter hoping that they hold "winning tickets" -- and strongly counters this view of our system. As Clark points out, it is not true -- as Bush suggests -- that patients who sue and win are not really suffering, and thus feel like lottery winners when they get compensated. More likely, the patients breathe a sigh of relief that the jury recognized that they were truly injured, and compensated them accordingly.
Clark is also right to the extent that he suggests that if our medical malpractice system does need to be reformed, it is because many of the injuries suffered by plaintiffs were not caused by anyone's carelessness -- and thus, it is unfair for corporations to pay the bill for these injuries. (Yet on the other hand, it would be tragic if plaintiffs were left uncompensated because they lacked health or disability insurance.)
Overview of the Candidates: Democrats Who See Some Need for Tort Reform
This brief review of the four leading candidates tells us as much about the current state of debate over tort reform in the United States, as it does about the differences between the candidates.
This composite picture of the Democratic Party shows that the party is not unaware of the need to reform parts of the civil justice system. Even the positions taken by Dean and Edwards--though the two are members of professions that view each other as natural enemies--are nuanced and reasonable, and not so wildly dissimilar.
The message I take from the candidates positions, then, is an optimistic one: If the special interests that control the Democratic Party can be kept at bay, it is possible that the party may be able to develop a true "common sense" approach to tort reform.
Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects. His previous columns on tort law can be found in the archive of his columns on this site.
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at 3:05 PM EST
