Monday, May 14, 2007

The Relentless Pursuit of Truth

The Democratic National Committee (DNC) is fighting mad, over rumors about a purported phone call between Kansas Governor Kathleen Sebelius and DNC Chair Howard Dean. According to the rumors--first broadcast last Thursday by Pittsburgh (and XM) radio talk show hosts Quinn and Rose, Mr. Dean reportedly urged Governor Sebelius to emphasize National Guard equipment shortages in the wake of the killer tornado that struck Greensburg, Kansas on May 4th. In other words, Dean was encouraging Ms. Sebelius to politicize the disaster, by linking claims of a "slow" response in Greensburg to equipment shortfalls resulting from guard deployments to Iraq. The rumors broadcast by Quinn and Rose were also reprinted on, by a poster using the handle "coffee260."

We must emphasize that the rumor has been flatly denied by both Mr. Dean and Governor Sebelius. In fact, the DNC took the additional--and some would say, questionable step--of having their legal counsel issue "cease and desist" letters to Quinn and Rose and Jim Robinson, founder of Scott Johnson at Powerline obtained a copy of the letter, which is available here. Readers will note that the DNC's lawyer claims that the reposted comments are "false and defamatory, are libelous and slanderous, and clearly threaten to interfere with the
DNC's operations and ability to solicit support and raise funds, by prejudicing the organization in the eyes of Democratic Party supporters and the public."

Mr. Johnson, who is also an attorney of considerable skill and reputation, describes the DNC counsel as a "thug," representing a group of "reprobates and bullies." The tactic, he observes, is reminiscent of the efforts on behalf of the Kerry presidential campaign to squelch "Stolen Honor," a controversial documentary about the Senator's Vietnam service and subsequent anti-war activities. In one case, a University of Delaware professor claimed that he was defamed by the film, which showed him in a a veterans' group, protesting the war.

Johnson also notes that the legal case against the FreeRepublic poster is weak, at best:

Under the First Amendment, as construed by the Supreme Court in New York Times v. Sullivan, citizens are protected from defamation claim by public figures so long as the statements in issue are lacking in "actual malice," i.e, knowledge of their falsehood or reckless disregard as to whether they are false or not.

Accordingly, our reader's Free Republic post based on the statements of Jim Quinn is constitutionally immune from a defamation claim. Whether Quinn and those who broadcast his program have such immunity is a different question, but the same constitutional protection applies to them. Professor and First Amendment expert
Eugene Volokh coincidentally makes a closely related point based on the Sullivan case today.

"Actual malice" is a tough standard for public figures to overcome. That's why defamation claims by public figures have essentially disappeared since the Sullivan case. Under the Sullivan case, the First Amendment affords wide latitude for the discussion of public figures as well as issues of public concern.

Sandler's letter to Free Republic incorporates no element of "actual malice." It is couched in the traditional common law of defamation that the Supreme Court killed for public figures in the Sullivan case. Sandler's letter carries Governor Dean's denial of Quinn's assertions, but it does not even allege that Jim Quinn had knowledge of the statements' falsity or made them with reckless disregard of their truth or falsity.

We therefore associate ourselves with our reader's statements regarding Governor Dean and invite Mr. Sandler to sue us for defamation as he threatens to sue Free Republic. This is to put him and his client on notice, however, that we intend to seek our attorney's fees under federal law for the assertion of a frivolous claim if he does so.

As of today, the original claim is still posted on Quinn and Rose's website, and the Democrats haven't indicated if they'll pursue the matter in court. But we find it a bit odd that the DNC is suddenly concerned with the "truth" in the Greensburg disaster, when one of its appointed mouthpieces continues to spout information that is demonstrably false. In the Democratic "response" to President Bush's radio address on Saturday, retired Major General Mel Montano, the former Adjutant General of the New Mexico National Guard, recycled half-truths and distortions about the Kansas Guard and its response to the Greensburg disaster. Here are a few excerpts from Montano's reply:

"Crucial equipment used by the Guard for disaster relief is now in Iraq instead of standing ready to respond to crises here at home. Without the equipment they need, the Guard can not respond effectively to catastrophic events. They can not quickly secure communities, remove debris, and save lives."

"When the tornado struck Kansas last week, the Guard had half the number of humvees and large trucks they usually would have at their disposal. As a result, the recovery process now will take longer and the people of Kansas are more vulnerable if another disaster should strike. The Guard in Ohio, California and Arkansas face similar obstacles to respond to natural disasters in the future."

Apparently, General Montano didn't catch last week's press statements from the Pentagon and the Guard Bureau, detailing ample quantities of personnel and equipment available to the Kansas Guard--and Governor Sebelius.

The Kansas National Guard has 88 percent of its forces available and is working quickly and aggressively to save lives and reduce suffering, Guard Bureau officials reported. More than 6,800 additional Kansas Guard troops can be tapped, if needed, as well as more than 80,000 Guardsmen from surrounding states, Pentagon spokesman Bryan Whitman told reporters today.

Kansas Guardsmen responding to the disaster have 60 percent of their Army Guard dual-use equipment and more than 85 percent of their Air Guard equipment on hand, officials said. Whitman reported a full range of Guard equipment on hand to support the mission. The Kansas Guard has 352 Humvees, 94 Heavy Expanded Mobility Tactical Trucks, 24 medium and light tactical vehicles, 152 2.5-ton cargo trucks, 76 series 5-ton trucks, 13 M916 tractors, 870 trailers, 52 Heavy Equipment Transport Systems, and 30 Palletized Load System Trucks.

In terms of engineering assets, the Kansas Guard has all -- and in some cases more than, -- its authorized vehicles. This includes five road graders, 15 bulldozers, eight scoop loaders and 72 dump trucks, he said. Whitman said he was unable to report which of these assets is undergoing maintenance and might not be immediately available to provide tornado relief.

Montano also failed to mention that Governor Sebelius was forced to backtrack from her original comments, after inventories of available equipment and personnel became public. It's also worth noting that Montano ignored a statement from the Kansas Guard Adjutant General (Major General Tod Bunting) who reported that his units had what they needed for the Greensburg response, and would be pressed only if they faced another disaster of equal magnitude, over the short term.

Yet, the same DNC that is concerned about the allegedly "false" and "defamatory" statements on talk radio and a conservative website was quite happy to let General Montano repeat assertions that are inaccurate, at best. It's a shame that the Guard can't send a cease-and-desist letter to the DNC, Mr. Dean, and General Montano.


As for the general, he's apparently building a second career as a Democratic party hack. When we last reported on Major General Montano, he was on a seven-state "barnstorming" tour, at the behest of an anti-war group, along with two other retired flag officers. During a conference call with the Chicago Tribune, Montano and his compatriots urged President Bush not to use wounded soldiers as "props" during a highly-publicized visit to Walter Reed Army Medical Center. But obviously, General Montano isn't above using the Guard--and its equipment problems--for his own political purposes.

One final Montano annecdote. In researching the former Adjutant General, we came across this comment from the New Mexico Guard's current commander, Brigadier General Kenny Montoya. In an interview with a Santa Fe newspaper earlier this year, General Montoya observed that "the Army has never given the Guard the resources it needs. And, he said, after decades of shortages, "you're not going to catch up overnight."

Decades of shortages? Hmmm, that period would certainly include Montano's leadership of the New Mexico guard. Perhaps it's time to start asking the former Adjutant General about his failure to fix problems that have (apparently) been festering for years.

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