The content of this thing is pretty ugly. Here’s a shot of the worst page. You can click on it for a larger .pdf version of that page.

This is accompanied by a smiling photo of Governor Charlie Crist, along with a message warning that terrorists want to kill us, and that we should vote for Republicans to “help keep America safe.” (You can download a .pdf of the entire mailer, if you want.)

Got that? The State GOP, which paid for this thing, and the formerly post-partisan Governor, are saying that Democrats want to surrender to terrorists. Talk about low-class smear jobs…

Does anyone actually think that Democrats want to surrender to terrorism? Most Democrats want to make an orderly exit from Iraq. So, the polls tell us, does most of the country. (And, for what it’s worth, during the second Presidential debate it was Obama who took the more bellicose approach towards chasing down bin Laden, not McCain.)

It used to be that we only saw stuff like this in the last week before election day. But the GOP wants absentee ballots, and early voting starts soon, so here we go.

The FBI has blocked two of its veteran counterterrorism agents from going public with accusations that the CIA deliberately withheld crucial intelligence before the Sept. 11, 2001 attacks.

FBI Special Agents Mark Rossini and Douglas Miller have asked for permission to appear in an upcoming public television documentary, scheduled to air in January, on pre-9/11 rivalries between the CIA, FBI and National Security Agency.

I have no idea how significant this is, if it all. Given that Bush ignored a report saying bin Laden was ready to strike at the US, you have to wonder whether live action movies of the strike teams doing a dress rehearsal would have done any good.

Academic writers are, among other things, supposed to develop points of view that help their readers think about not only the most immediate and concrete aspects of events but also their more general and maybe more lasting dimensions. Mark Tushnet is an especially dry-eyed master of this sort of thing. In “The Political Constitution of Emergency Powers,” just published in the Minnesota Law Review (91: 1451), he emphasizes the narrowness of the Supreme Court’s decision in Hamdan holding that the President could not set up military commissions of the sort he wanted without congressional authorization: That’s all, nothing more. The Court’s insistence that there need be legislation involved no substantial judgment about what commission procedures should look like. But this otherwise empty insistence also put in motion the “political constitution,” familiar congressional/executive dealings that serve generally as the mechanism through which decisions about commission procedures, for example, are reached. See, e.g., the Military Commissions Act. Tushnet shows at some length how those dealings are organized by parts of the Constitution. But he celebrates nothing (neither the Constitution nor Hamdan).”[I]f Hamdan is a triumph of the Rule of Law, so much be the Military Commissions Act. (Now apply the logical rule of contraposition.)” (1472)

Writing in this Tuesday’s Slate, Dahlia Lithwick, in the posting “Crisis of Confindence,” notes that the 4th Circuit opinion is, maybe among other things, an effort at “creating clean legal lines for the next enemy combatant case.” This is a very thoughtful essay. But it’s not wrong to wonder, I think, whether the “legal lines” (“clean” or not) aren’t also relevant in cases that are more mundane — involve no enemy combatants or other emergency elements. In this regard, Michael’s and my colleague Ricardo Bascuas has written much worth thinking about in a new article soon to appear in the Rutgers Law Journal — titled “Fourth Amendment Lessons From the Highway and the Subway: A Principled Approach to Suspicionless Searches.” This is not a short work, but Bascuas’s writing proceeds quickly, clearly and emphatically (it is legally sophisticated but also, I think, largely accessible to nonlawyers). The last part is for present purposes the most important. There he shows that it’s entirely possible to think about searches incident to ordinary traffic stops and searches undertaken to protect subways from terrorist attacks in precisely the way, a way that turns out not only to be responsive to emergency, but to catch the most important element in our constitutional commitment to civil liberties (no police state) more clearly and effectively than the Supreme Court’s famously muddled day-to-day efforts. (The article is posted on SSRN if you don’t want to wait.)

Having now seen the first night of this fiction, it is clear that the edits made to the film did not address the factual errors that we brought to your attention. "The Path to 9/11" flagrantly ignored the facts as reported by the 9/11 Commission and invented its own version of history. The result, in our judgment, is irreparable damage to the Commission's work. More importantly, it is a disservice to the American people.

That the film directly contradicts the findings of the 9/11 Commission is troubling. That it defames dedicated public officials is tragic. But the fact that it misleads millions of people about the most tragic and consequential event in recent history is disgraceful.

As someone who was directly involved in almost every event depicted in the fictionalized docudrama, "The Path to 9-11," I believe it is an egregious distortion that does a deep disservice both to history and to those in both the Clinton and Bush administrations who are depicted....

Although I am not one to easily believe in conspiracy theories and have spent a great deal of time debunking them, it is hard to escape the conclusion that the errors in this screen play are more than the result of dramatization and time compression. There is throughout the screenplay a consistent bias and distortion seeking to portray senior Clinton Administration officials as holding back the hard charging CIA, FBI, and military officers who would otherwise have prevented 9-11.

The exact opposite is true. From the President, to all of his White House team, and NSC Principals (Lake, Berger, Albright, Tenet, Reno) there was a common fixation with terrorism, al qaeda, and bin Ladin. The President approved every counter-terrorism operation presented to him, including many that CIA proved unable or unwilling to implement. He increased counter-terrorism spending by 400% and initiated the first homeland security program in forty years. Even though the US had taken relatively few casualties from al qaeda at the time, the President repeatedly authorized the use of lethal force against bin Ladin and his deputies and personally requested the US military to develop plans for "commando operations" against them. Even though he knew the timing of an attack aimed at killing bin Ladin would be labeled by critics as a political diversion, Clinton decided to follow the advice of his national security team and pay the price politically.

Keith Olbermann's Special Comment on Bush: Who has left this hole in the ground? We have not forgotten, Mr. President. You have. May this country forgive you.

"It's just a movie?" If there is libelous content in the show by the time that it's aired, I don't see how even a disclaimer during the show could undo the effects of this advertisement, one which promises us the shocking truth. I don't know exactly where this ad is being shown, but if it is being shown in England or in Australia or New Zealand, it could prove to be an expensive choice.

Then again, the writer at Daily Kos speculates that ABC/Disney may edit the most libelous scenes in the 'The Path to 9/11' in order to obfuscate who is doing what -- in other words, leave the fabrications in place so as not to upset the blame-Clinton narrative which is apparently the core of the show ("how they could have wiped bin Laden out; they didn't, but why? ..."he's right there"; how one decision changed our world...can't you give the order?...I don't have that authority"), but fuzz the parts identifying people by name that might be most actionable.

ABC/Disney should wake up and pull this horror before they trash their brand. Disney is a diversified company with a market capitalization of almost $62 billion. Even so, I wonder how long before this starts affecting the stock price.

All quotes verbatim excerpts from Walt Disney Standards of Business Conduct; illustrations shamelessly hotlinked from all over.

Dear Fellow Disney Team Member:

Throughout the years, our guests, audiences, consumers and shareholders have come to depend on us for quality, creativity, innovation and integrity.

People trust us because of our commitment to them and to the standards to which we hold ourselves. We alone are responsible for upholding our excellence and our integrity. This means acting responsibly in all our professional relationships, in a manner consistent with the high standards we set for our business conduct.

I'm just wondering when American Airlines is going to realize that it's about to be defamed in the entire English-speaking world.

As I first noted yesterday, I have the entire "Path to 9/11" video. And one of the very first scenes makes it explicitly clear that American Airlines had Mohammad Atta in its grasp, warning lights flashing on the computer screen, yet the airline simply blew off the threat and helped Atta kill 3,000 Americans.

Unfortunately, it's a total lie.

Besides England, there's hay to be made in New Zealand and Australia (where apparently the film is being marketed as "the story of exactly what happened" on 9/11 !).

As AmericaBlog says, the potential damages are so large that when the dust settles ABC might stand for 'Albright, Berger and Clinton.' Plus the corporate plaintiffs...

Meanwhile, however, comes the news that ABC has sold rights to the BBC, which will be showing the film on Sunday. I'd love to know whether ABC has indemnified the BBC for any libel claims because it is waaaaaay easier to make a libel claim stick in the UK -- even if one is a non-resident -- than it would be in the US. And a British jury (libel being about the only time civil cases are tried to a jury in England any more) is likely to be infinitely more sympathetic to the Clintons, and hostile to the current administration, than any US jury.

I can see why ex-President Clinton might not want to file suit in the US, but discovery is much less invasive in the UK. As for the other persons in the Clinton administration who may feel that their reputations have been tarnished by whatever emerges from the dungeons of ABC/Disney, I'd advise them to consult counsel in England (names available on request). Easier to make the case, and the damages (plus costs!) could be quite substantial if the facts are still there to support a claim.

If I have any readers in the UK, they might wish to contact the BBC to warn them about their programming choices. It would be good to put them on notice of the risks. The BBC will understand what its potential exposure is.

Fortunately, Google allowed me to find the name of the general manager, so on my next call I was able to pick his name out of the automated directory. I'm not going to print it here in the hopes that he won't get too inundated with telephone calls, just those from the well-informed and highly motivated. I don't think harassment is likely to be effective here. If you do call, please be polite. I also suggest writing out the main points you want to make before you place the call. (Good sources of inspiration include ThinkProgress and Open Letter to ABC and this post at The Carpetbagger Report.)

It was a frustrating conversation, which got off the wrong foot when the GM tried to suggest his hands were tied without actually saying so in so many words and I forcefully said that since WPLG isn't ABC-owned it has a choice to make. (In fact, Wikipedia says that WPLG is owned by a subsidiary of the Washington Post.)

Main point: WPLG plans to air 'The Path to 9/11'. During a 20 minute or so call with a generally polite but sometimes exasperated and occasionally almost bullying GM (in all fairness, I gave as good as I got), I was offered the following justifications which I've summarized and paraphrased below (my responses in parenthesis):

• It's just a movie. (But that's not how it was promoted, including a big glossy ad that came with this morning's Miami Herald saying "based on the 9/11 commission report" right across the top. Anyway, running a one-sided drama on a critical national issue shortly before a key election can be harmful in itself).
• We'll be running a disclaimer several times during the show, the full text of which is quoted below. (But these are not as effective as images; they will fail to undo the harm done by the film; and of course they can't substitute for what's missing.)
• They are proud of the news division and hold it to the highest standards of accuracy. (I said, does that mean those standards don't apply to movies, and was accused of putting words in his mouth).
• Wasn't their coverage of 9/11 tremendous? (I said I didn't have a photographic memory for what they did five years ago, and even if it was great that didn't alter the choice facing them now).
• People like me want to censor everything they disagree with on TV and in Blockbuster (I said I didn't want the government to prevent him from showing it, I wanted him to make an independent moral choice. And there's lots of stuff on TV I disagree with, but this was the first time I'd ever called him.)
• I can't (or shouldn't) criticize the movie until I've seen it (I suggested that [1] ABC had controlled who could see it in advance and [2] there were many actions in life where it was appropriate to try to prevent something rather than wait until after the damage was done -- and this was one of them).
• The effects of this movie will be positive as it is creating a useful debate that we wouldn't otherwise have had. (Couldn't you justify airing any false thing with that argument?) [Incidentally, this counter-argument, and the hypos I offered to support it produced the most anger: how could I make such generalizations!?! I'm afraid I didn't say what I do for a living.]
• I've made up my mind on the issue. (Yes, I said, and now I want to change yours.)

The only thing I said that seemed to even give him pause was when I said I'd be contacting local advertisers. To the response that there will be no ads during the program I said that money was fungible, that advertisers in other parts of the country were pulling ads for a week around the show to make a point. He didn't like that. To the claim that I was trying to interfere with his freedom of speech, I said, no, I supported his freedom and wanted him to use it in a responsible way; if he didn't I had the freedom to criticize him and to urge others not to support him financially.

At one point towards the end of our conversation I asked what it would take to convince him that the film shouldn't run, if there was any amount of error or misleading that would suffice, but never got a straight answer. When I suggested that meant there was no amount of error that could block a 'docudrama' I was again told not to put words in his mouth. But if there is a local standard here, I was unable to get an articulation of it.

So, left with no alternative, I've started by contacting ABC's national advertisers whose products I currently use. But doing it on a local level would be much, much more effective. Anyone have a list of local WPLG advertisers?

Meanwhile, here's the full text of the disclaimer that WPLG's General Manger kindly faxed me; he told me they will be running this "throughout" the 'Path to 9/11':

The following movie is a dramatization that is drawn from a variety of sources including the 9/11 Commission Report and other published materials, and from personal interviews. The movie is not a documentary. For dramatic and narrative purposes, the movie contains fictionalized scenes, composite and representative characters and dialogue, as well as time compression.

I was invited to call back after I saw the show, but frankly I don't think I would want to spend several hours of my life being propagandized and then have to make an effort to sort truth from fiction. As someone who reads history books and newspapers, I've always avoided watching docudramas in the past to avoid the mental confusions they threaten to create and I don't think I want to start with this one. But if there are any local experts around who want the job, I have someone you might like to talk to afterwards. Not that I expect it could possibly achieve anything meaningful after the damage is done...