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This headline, on The Washington Post’s long Sept. 21 article about a large survey of students at 27 public and private universities across the country college, is false. Although the survey, by the Association of American Universities (AAU), was itself deliberately designed to exaggerate the number of sexual assaults on campus, even the AAU said that “estimates such as ‘1 in 5′ or ‘1 in 4′ as a global rate” across all universities is [sic] oversimplistic, if not misleading.”

This is not to suggest that The Post misrepresented the AAU survey’s findings any more than did most major news media. Such advocacy-laden surveys on campus sexual assault — and breathless media reports overstating their already exaggerated findings — have become the norm in this era of hysteria about the campus sexual assault problem.

The problem is no doubt serious, if shrinking. But it has been vastly exaggerated by the Obama administration, anti-rape activists, their media allies and universities pandering to them. It’s no surprise to see the AAU joining this chorus.

Below are three ways in which the 288-page AAU survey report is grossly misleading, as are others like it and the credulous media coverage of them all.

First, the extraordinarily low response rate of students asked to participate in the AAU survey — 19.3 percent — virtually guaranteed a vast exaggeration of the number of campus sexual assaults.

Even the AAU acknowledged that the 150,000 students who responded to the electronic questionnaire were more likely to be victims of sexual assault than the 650,000 who ignored it because “non-victims may have been less likely to participate.”

Start with the fact that 60 percent of the 150,000 students who responded were female, even though half of all students at the surveyed schools were male. Then ask yourself whether you would be more likely to take the time to respond to such a survey if you were a sexual assault victim or if you were not.

Then, to resolve any doubt that the respondents were far from representative of the nation’s college students, consider the facts buried in Tables 3-2 and 6-1 of the AAU survey.

These tables indicate that about 2.2 percent of female respondents said they had reported to their schools that they had been penetrated without consent (including rape) since entering college. If extrapolated to the roughly 10 million female college student population nationwide, this  would come to about 220,000 student reports to universities alleging forced sex over (to be conservative) five years, or about 44,000 reports per year.

But this would be almost nine times the total number of students (just over 5,000) who reported sexual assaults of any kind to their universities in 2013, the most recent data available, according to the reports that universities must submit to the federal government under the Clery Act.

People who experience some kind of incident without reporting it don’t affect the validity of this calculation because none of them (assuming honesty) would be among the 2.2 percent who told the researchers that they had reported to authorities, and all of the 2.2 percent should show up in the Clery Act submissions.

The AAU does not mention this devastating flaw in its methodology.

 The AAU also acknowledged that the huge differences in its estimates of sexual assault rates at the 27 schools — ranging from 13 to 30 percent — make it impossible to provide an accurate estimate even for those 27 schools as a group, let alone the more than 7,000 other colleges in the country.

Second, the AAU classified as sexual assault or misconduct a far broader range of behaviors than does the criminal law or common understanding, in order to get big numbers such as the claim that 23.7 percent of female respondents told researchers they had experienced “sexual assault and sexual misconduct due to physical force, threats of physical force, or incapacitation.”

A more reliable estimate came in 2014 from the Justice Department’s annual National Crime Victimization Survey: No more than 1 in 160 (0.6 percent) of college women per year — or 1 in 32 (3 percent) over five years — are sexually assaulted.

But the AAU, mimicking other agenda-driven surveys, asked respondents questions such as whether they had experienced “forced kissing,” unwanted sexual “touching” (which could include attempted close dancing while fully clothed), “promised rewards” for sex, threats to “share damaging information about you” with friends, and the like. Then the AAU counted every “yes” answer as a sexual assault (or “misconduct”).

In addition, about half of the students who were counted by the AAU as victims of sexual assault were so classified because they answered yes when asked whether anyone had penetrated or sexually touched them when “you were passed out, asleep, or incapacitated by drugs or alcohol” — which could be seen as including moderate intoxication.

Worse, the AAU also tallied as victims all respondents who said yes when asked whether anyone had sexually touched them “without your active, ongoing voluntary agreement” — for example, attempting more intimate contact “while you were still deciding.”

No criminal law in America requires such “affirmative consent” to make sex lawful, although some (not all) universities have recently moved in that direction.

To borrow from an admission buried in The Post’s huge package of articles in June about a very similar Post-Kaiser poll, the effect of the AAU survey questions was to paint a “dramatically” more dire picture than would questions using “terms like sexual assault and rape” — which the AAU studiously avoided.

Third, a red flag should go up for any reporter or other reader who notices the AAU’s acknowledgment that — for the vast majorities of poll respondents who said they had not reported to campus authorities the events that the AAU classified as sexual assaults — “the dominant reason was it was not considered serious enough,” (emphasis added).

 More astonishing still, 75 percent of respondents who told researchers that they had been “penetrated using physical force” said they had never reported this to authorities — and 58.6 percent of that 75 percent said they “did not consider it serious enough” to report.

This most plausible explanation is that most of those classified by the survey as “victims” of sexual assault or rape did not really think that they had been sexually assaulted.

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Now the Washington Post has joined a race to the bottom among the legacy media, in a June 12 package of two very long front-page articles and a third inside the paper that includes both the results of a Post-Kaiser Family Foundation poll and detailed interviews of some respondents. The main headline: “1 in 5 women say they were violated.” The articles and the poll purport to confirm claims by the administration, its congressional supporters, most of the media, and campus activists that around 20 percent of female college students are sexually assaulted while at school. In this portrayal, the nation’s campuses are hotbeds of violent crime.

But like many other advocacy polls on sexual assault, the Post-Kaiser poll misleads readers—most of whom surely will assume that “sexual assault” means criminal sexual assault—by using that criminally charged phrase for shock value in the articles while deliberately avoiding it in the survey questions. As detailed below, those questions are so broad as to invite survey respondents to complain about virtually any encounter that they later regretted, including many that were not sexual assault or rape as defined by law.

According to the Post’s accompanying articles, the “survivors” of these sexual encounters experienced enormous pain and suffering. But it’s not entirely clear how the Post determined that the students with whom the paper spoke are in fact “survivors” of sexual assault, although some clearly were. Virtually none of these students went to the police, nor did most report any incident to their colleges, whose adjudication procedures are all but designed to find the accused student guilty. Instead, the Post reporters simply assumed the truth of most of their sources’ claims and thus the guilt of the accused.

Details from the few subjects who did report matters to police reflect badly on the Post’s credibility. Take, for instance, the student with whom one of the Post’s front-pagers leads, Rachel Sienkowski. Reporters Emma Brown, Nick Anderson, Susan Svrluga, and Steve Hendrix say in their second paragraph that a few weeks after arriving on the Michigan State campus, Sienkowski “had become a survivor” after an afternoon of tailgating ended with a man she didn’t know in her bed. She went to the police, the Post reported, because she awoke not only having been violated, but with her head bloodied.

But the end of the article lets slip that in fact this, the paper’s lead example of a campus sexual assault, seems instead to have been a regretful, but not atypical, drunken hookup that neither party remembers well. The scary bleeding was apparently self-inflicted when Sienkowski fell out of her loft bed onto the floor, while the male was asleep. The person she brought back to her room wasn’t a Michigan State student (and might not have been a college student at all). And, the Post disclosed in the last 120 words of a 2,870-word article, even Sienkowski conceded that “she doesn’t know for sure whether she had wanted sex in the moment.” She said this after seeing the police report, including photographs of the hickeys that the accused said her lips had branded on his neck as evidence that she “was very into everything that was happening.”

If she hadn’t been drinking, Sienkowski tells the Post, the hookup was “not something I would do.” There’s no reason to doubt this. But there’s also every reason to doubt that any serious prosecutor in the country would see what Sienkowski experienced as sexual assault—although, unfortunately for civil liberties, many colleges would see it as just that.

Some of the Post’s most harrowing “survivor” stories, meanwhile, have nothing to do with the issue of campus sexual assault. A student from Eastern Michigan, visiting New York City, got drunk and separated from her friends, and then was raped by a stranger in the Port Authority. A student from Wisconsin-Eau Claire was found passed out in a Minneapolis bar and thought he was drugged and raped, though he never went to the hospital for tests. Both of these experiences are awful, and raise disturbing questions as to why neither of these seeming victims of violent crime reported the offense to law enforcement. But from either a public policy or a journalistic perspective, do offenses allegedly committed hundreds or thousands of miles away from campus, by perpetrators who were not fellow college students, have any relevance to the question the Post series hopes to address?

And Post journalists also offered a most unusual description of the claims of unnamed “survivors.” In the second paragraph of the second June 12 front-pager that some interviewees “say they were coerced into sex through verbal . . . promises.” In normal English usage, a promise cannot be coercion of any kind, let alone sexual assault.

These “survivor” stories form the background for the Post’s highly misleading analysis of the poll results.

For example, the Post asserts that “[t]wenty percent of young women who attended college during the past four years say they were sexually assaulted.” But the survey questions (the specifics of which are buried in the coverage) ask respondents whether they had experienced a much broader category of sexual behaviors. Indeed, a researcher whose views are consistent with the poll’s questions is quoted deep in the Post package explicitly stating that those questions are designed to get “‘dramatically’” higher positive answers than would “‘terms like sexual assault and rape.’” This is, effectively, a journalistic bait and switch.

What do the Post’s biased figures actually say? Of the supposed 20 percent of college females who are “survivors,” more than half claimed to have experienced sex while “incapacitated,” explicitly defined as “unable to provide consent or stop what was happening because you were passed out, drugged, or drunk, incapacitated, or asleep.” In other words, the poll invites respondents to say they were unable to consent even if they were just a little bit drunk. But “drunk” is very far from incapacitated in the usual, legal sense of the word—or, for that matter, in the longstanding cultural understanding of what constitutes sexual assault.

As David French has observed, the poll—apparently with the intent of reporting the largest percentage of “survivors” possible—also uses an exceptionally broad definition of what constitutes sexual assault. The Post defines “forced touching of a sexual nature” to include “forced kissing . . . grabbing, fondling, rubbing up against you in a sexual way (even if it is over your clothes),” and other vaguely described behaviors many of which cannot seriously be called sexual assault.

The Post doesn’t even try to deal with the argument made most consistently by AEI’s Mark Perry: At some point, the disparity between polls like the Post’s and reported sexual assaults becomes too wide to bridge. The implicit justification for figures like the Post’s so exceeding FBI and Justice Department statistics is that most rape victims don’t report their assaults; according to the administration, only 12 percent, or around one in eight, of campus rapes are reported to law enforcement. But accepting the administration’s figure and multiplying the number of reported rapes by a factor of eight would yield nothing close to 20 percent of college women being assaulted.

In sum, the Post misleads its readers by counting as “sexual assaults” numbers that are deliberately inflated to greatly exceed the legal definitions of “sexual assault” and to sweep in virtually all regretted sexual or even semi-sexual experiences, such as close dancing that a “survivor” later decides was unwelcome.

This may help explain why only 12 percent of students considered sexual assault a “big problem at their school”—while a separate Kaiser survey featured 57 percent of the general public deeming the issue “a big problem.” Students, it appears, have a far different perspective from those whose primary view of campus life comes through alarmist statements by leading politicians or equally alarmist news reports from publications like the Post.

For example, the Post tells readers that “in recent years the number of reports of forcible sexual offenses on campus has surged.” But in fact the number of campus sexual assaults per capita plunged by half between 1997 and 2013, according to the 2014 report of the Bureau of Justice Statistics’ National Crime Victimization Survey, which has long been the most respected and reliable source of crime statistics. The Post unconvincingly contends that the annual BJS survey’s finding that 6.1 of every 1,000 students are sexually assaulted understates the numbers of victims. But even if the Post’s argument were valid, it would cast no doubt on the BJS finding of huge decreases since 1997.

Alarmism in coverage such as the Post’s already is having a deeply disturbing impact on attitudes toward civil liberties. The most shocking result from the Post-Kaiser poll was the finding that college students see a “person who commits sexual assault getting away with it” as “MORE unfair” than an “innocent person getting kicked out,” by a margin of 49 to 42 percent. As often occurs in periods of hysteria, these future citizens are accepting the fundamentally illiberal message that convicting the innocent is a price to pay to achieve the greater good.

This illiberal spirit is likely to intensify. It’s hard to escape the connection between the biased reporting and the Post’s just-announced decision to convene a “thought provoking conversation” on the issue of campus sexual assault. The seven presenters all appear to come from only one side of the argument; the paper did not, for instance, invite even a token defense attorney, civil libertarian, or any of the growing number of falsely accused students who have proved their innocence. The most prominent speaker will be Senator Kirsten Gillibrand (D-New York), the foremost congressional champion of degrading campus due process. Another invited speaker will be victims’ rights advocate Dana Bolger—an Amherst College student who formed part of a cohort of campus activists demanding that the college change its procedures to increase the chances of guilty findings. The school did so, and is now being sued after a colleague of Bolger’s in the campus movement leveled what appears to be a false accusation of sexual assault against an innocent man.

The Post’s manipulation of campus surveys and statistics, moreover, should cause Congress to think long and hard about enacting the Campus Accountability & Safety Act. A central component of the measure, whose lead sponsor is none other than Gillibrand, is to require colleges to have an “adequate, random and representative sample size of students” complete biannual “campus climate” surveys—whose questions, no doubt, will be designed to trigger the kind of results that can be used to justify a further weakening of campus due process, and a further spreading of off-campus alarmism. And the Post, it appears, will feed the distortions instead of speaking truth to power.

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Dear Mr. Purdy:

For the record, here’s my point by point response to your response to my article in Real Clear Sports:

I expected that some might dismiss my credibility as a journalist because I acknowledged the help of a first-rate reporter for a Florida State fan site who pointed me to information in the public record. I did not expect that the Times would resort to such a transparent evasion of the facts. I am learning to lower my expectations.

I did point to inaccuracies. For example, the oft-repeated claim in at least seven Times articles that the police did “virtually no investigation at all” is demonstrably false.

Much more important, I pointed to the systematic exclusion from the Times’s very extensive coverage of the Jameis Winston rape allegation of a mass of exculpatory evidence casting grave doubt on the accuser’s credibility. This evidence showed that the accuser has made multiple inconsistent and false statements apparently designed to conceal the very considerable (although not conclusive) evidence that she consented to sex with Jameis Winston.

It is extremely revealing that the Times invokes Justice Harding’s finding that “I do not find the credibility of one story substantially stronger than that of the other” — which my article quoted with approval — as justifying your omission of almost all of this exculpatory evidence.

Indeed, discerning readers will infer that the Times’s pattern of misleading omissions can be explained only as a deliberately deceptive effort to smear the thrice-cleared Winston as a rapist.

In contrast, you have not pointed to a single error or misleading statement in or omission from my article.

Prosecutors who fail to disclose exculpatory evidence are properly condemned and sometimes disbarred. Journalists should be held to the same standard. They are supposed to be in the truth-telling business.

As you know, but contrary to your implication:

–My article quoted Dean Baquet making your response’s second point: “Baquet further stressed Justice Harding’s refusal to adopt Winston’s lawyers’ claim that the accuser ‘intentionally fabricated an elaborate lie’ and Harding’s finding that ‘trauma, stress, anxiety, or the like can affect a person’s memory which can possibly improve with time.’ ”

–My article quoted verbatim all of the findings by Justice Harding that your response quotes and is completely consistent with them.

–I wrote: “It’s true that the police made serious errors, as State Attorney Meggs has complained.” I also added details, including the police failure to locate the video before it was destroyed.

–I quoted Dean Baquet saying that “[w]e believe your premise is fundamentally wrong” and that “we took no position on whether the sexual encounter … was rape or consensual sex.”

You did, of course. Implicitly, if not explicitly.

Sincerely,

Stuart Taylor

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shows that his claim that his accuser consented to have sex is as credible as her often-revised account.
The Times’ coverage of the Winston controversy (and others like it) shows the nation’s most influential newspaper exemplifying bias in the Winston case in particular and on the issue of campus rape in general. It comes at a time when Winston will soon be back in the news due to the 2015 NFL draft and a forthcoming film on campus sexual assault, “The Hunting Ground,” which showcases his accuser’s public campaign against him while suggesting that the NFL should shun him.

The uncomfortable truth is that whether Winston committed a rape or whether his accuser is telling a false story cannot be established with confidence. This past December Florida State announced the results of its investigation of the accusation against Winston after a two-day hearing before retired Florida Supreme Court Justice Major Harding. He reviewed over 1,000 pages of evidence and legal arguments. Under university rules, the accuser needed to prove only that it was more probable than not that Winston subjected her to “any sexual act” without her consent or any other “sexual misconduct.” Harding found that the case against Winston did not meet even that low threshold. “I do not find the credibility of one story substantially stronger than that of the other,” he wrote, “or that this encounter was nonconsensual.”

The New York Times has devoted enormous resources to covering this controversy – more than 40 articles, including a 5,200-word piece by three-time Pulitzer Prize winner Walt Bogdanich — probing the legal processes that have cleared Winston. But the newspaper’s coverage has been characterized by the same selective and agenda-driven presentation of the facts it faults Florida authorities for exhibiting.

The accuser, anonymous until last month, has now publicly identified herself and told her story in “The Hunting Ground.” Her name is Erica Kinsman. In her version of events, she was not only raped by Winston but also mistreated by her university and the criminal justice system in order to protect a nationally famed athlete. This is what The Times’ coverage would lead readers to believe. But The Times has excluded a large body of evidence that undermines Kinsman’s credibility and supports Winston.

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Clarke’s forceful public criticism is of Chisholm and the so-called “John Doe” investigation that Chisholm has pursued since 2010 against Walker, his staff and virtually every conservative advocacy group in the state.

Clarke, who has been sheriff since 2002 and is running for re-election on Tuesday as the Democratic nominee, has been elected and re-elected with heavy support both from fellow African-Americans and from conservatives.

Clarke said that he agreed with a petition seeking appointment of a special prosecutor to investigate Chisholm. The petition was filed on Sept. 26 by a major Chisholm target, conservative fundraiser Eric O’Keefe.

While Clarke and Chisholm are both Democrats, the iconoclastic sheriff has often clashed with the more liberal Democrats who dominate Milwaukee politics, including Chisholm.

“This will go down as one of the ugliest chapters in Wisconsin political history” Clarke told this reporter. “This is a witch-hunt by a hyper-partisan prosecutor’s office … to go after political adversaries they disagree with.”

Clarke said Chisholm has been evasive responding to whistleblower Michael Lutz’s allegations that Chisholm had exuded improper personal and political bias against Walker in a private conversation in March 2011. Chisholm “didn’t answer the questions,” Clarke said, referring to an Oct. 8 letter in which Chisholm urged Milwaukee Chief Judge Jeffrey Kremers to reject O’Keefe’s petition, which had relied heavily on the questions raised by Lutz’s allegations.

He said he had regarded Chisholm as a “standup guy” years ago when, as a police captain, Clarke worked with then-Assistant District Attorney Chisholm on gun cases.

But as he learned about the nature of the Chisholm’s investigation of the Wisconsin Democratic Party’s political rivals, Clarke said, “I was appalled by some of the stuff that had gone on in the John Doe investigation, and that image I had of Chisholm as a person of unquestioned integrity started unraveling.”

The investigation started in 2010 based on a report by then-Milwaukee County Executive Walker’s staff that reported a minor theft from a charity fund.

Soon, Clarke said, “It became, ‘Let’s see what we can find,’ without any allegation. When you get prosecutors abusing their power, they can take out anyone. I’m a Democrat, but what if he says, ‘Let’s go get Clarke?’ They can ruin your life.”

Clarke stressed what he said had been politically motivated leaks by Chisholm’s office of confidential information about the John Doe investigation to embarrass Republicans including Walker.

“John said his office didn’t originate the leaks,” Clarke said.” Who else would have leaked it? They’re the only ones who had the information. I’m surprised as well that John Chisholm never displayed any concern or disgust that there were leaks coming out of… his own staff.”

Indeed, Clarke added, “You would think he’d shut the investigation down,” it’s so tainted.

Chisholm and his lawyer, Samuel Leib, have not responded to an emailed request for comment.

More generally, Clarke complained, while Chisholm was a good, tough prosecutor before becoming district attorney, he has since “turned more liberal” and soft on crime. “I don’t recognize him,” Clarke said. “He became ‘part of that revolving-door justice system that’s had terrible effects on minority communities.’”

Clarke described himself as a “conservative Democrat, strong on national defense, strong on safe streets. I believe the Constitution protects individuals not groups. I believe in limited government and I believe in the powers of the states.”

His calls for citizens to have guns for self-defense have made him something of a hero to many on the Republican right.

After four years of investigation, Chisholm and his fellow prosecutors have ordered predawn raids by armed officers on the homes of conservative activists; seized their documents, computers and cell phones while their children were getting dressed for school; subpoenaed hundreds of thousands of documents from dozens of conservative groups; routinely obtained gag orders barring targets and witnesses from revealing what has been done to them; won a few minor convictions but failed to find evidence sufficient to charge Walker, indeed any prominent conservative, with any crime.

The issue currently at the heart of the investigation is whether the collaboration of conservative issue-ad groups with Walker’s campaign in a 2012 recall election violated Wisconsin’s campaign finance laws against “illegal coordination,” as Chisholm has suggested.

Chisholm’s conservative targets say that their conduct complied with Wisconsin law, was protected by the First Amendment and was indistinguishable from the conduct routinely engaged in by Democratic candidates, groups and unions.

Both a state and a federal judge have ruled that none of the conduct under investigation appears to have been illegal. Those decisions are on appeal.

Chisholm, who launched the probe of Walker in 2010 and has staffed it with own his assistants, has conducted it since last year in conjunction with Special Prosecutor Francis Schmitz, now the titular head of the investigation, and the state’s Government Accountability Board.

Chisholm’s Oct. 8 letter stressed that Schmitz is not a Democrat and the GAB is required by law to be nonpartisan.

Clarke’s view that Chisholm was a good prosecutor who became “hyper-partisan” is strikingly similar to that of the whistleblower Lutz, the former Chisholm subordinate and decorated former police officer who has accused Chisholm of privately exuding strong personal and political bias against Walker.

“I admired him greatly,” as a friend and a mentor, Lutz has told this reporter, explaining that he was very friendly with both John and Colleen Chisholm because her brother had been Lutz’s police partner and best friend.

But during the bitter partisan battle in the winter of 2011 over Walker’s successful push to break the power of the state’s public-sector unions, Lutz said, “it was surprising how almost hyper-partisan he became.”

During a private meeting in Walker’s office in March 2011, according to Lutz, when he was serving as an unpaid “public interest special prosecutor,” Chisholm ordered him to reject a request by Republican Wisconsin Supreme Court Justice David Prosser that Lutz tape a pre-election video praising a Prosser decision that Lutz admired as good for police.

Chisholm’s reasons, as recalled by Lutz, were blatantly political: “He didn’t want Prosser to decide on” the inevitable legal challenge to Walker’s union-curbing legislation and he “wanted to stay as far away from these Republicans as he can.”

Chisholm also said, according to Lutz, that his wife Colleen, a teachers union shop steward, had been so angry and upset by Walker’s union-curbing as to be repeatedly moved to tears; that she had joined union demonstrations against Walker; and – most important – that Chisholm  “felt it was his personal duty to stop Walker from treating people like this.”

At the same time, Lutz added, many of Chisholm’s unionized staff acted “like an anti-Walker cabal,” with some posting blue fists as anti-Walker symbols on office walls.

Lutz’s reward “for telling the truth,” he has said, was that the Milwaukee Journal Sentinel hunted him down; exposed him as this reporter’s source despite his fear of retaliation and despite his prior role as a source for Journal Sentinel reporters; and dishonestly smeared him as a dangerous drunk with a troubled past.

In particular, the newspaper has repeatedly accused Lutz of making a drunken “death threat” in 2013 against Chisholm and his family.

This despite the facts that Chisholm himself has never claimed publicly that Lutz threatened him; that Lutz has dismissed the “death threat” allegation as a gross distortion of an angry but well-intentioned phone message intended to prevent a suicide; and that the much-decorated former cop, who earned a law degree after being disabled by a gunshot wound, has many admirers in the police department.

Clarke, under whom Lutz worked years ago when Clarke was a Milwaukee police captain, described him on Tuesday as “respected by peers as an active officer” who was “committed to public safety.”

Clarke added that “the Milwaukee Journal Sentinel, having a dog in this fight, went in typical fashion to smear Lutz’s reputation.” He called the newspaper “a wholly-owned subsidiary and a propaganda machine for the Democratic Party in Milwaukee.”

Partisan bias, Clarke implied, may also explain why the Journal Sentinel appears determined to obscure that Chisholm has never specifically denied any of Lutz’s allegations about their March 2011 meeting.

Chisholm’s most recent non-denials came in his nine-page Oct. 8 letter to Judge Jeffrey Kremers, which was made public on Oct. 25.  It rejected in detail various allegations by O’Keefe and his lawyers of criminal abuses of prosecutorial power – without mentioning Lutz or his allegations.

Rather, in apparent allusions to O’Keefe’s heavy reliance on those allegations, Chisholm wrote:

“Supposed ‘new’ information is now offered in the form of statements by persons who have no personal knowledge of which they speak…

“Plain and simple, words like ‘Act 10’ or ‘union’ and phrases like ‘stop Walker’ have never been uttered by me or anyone else in the course of any investigation.

“Those who know my wife know she is not inclined to tears or emotional distress. She is a strong woman with political views of her own, views that play no role in any decision I make as prosecutor.”

While many readers might infer that Chisholm’s letter contradicted Lutz’s allegations, in fact, as Clarke noted, it was carefully drafted to avoid denying a single one of them.

Chisholm’s statement that his wife “is not inclined to tears” did not deny that he told Lutz that she was repeatedly moved to tears by Walker’s Act 10. Nor did Chisholm deny, or even mention, his wife’s alleged “hate for the gov.,” her alleged role in union demonstrations against Walker, or even her role as a teachers union shop steward.

Still more striking is Chisholm’s use of the phrase “in the course of any investigation” to qualify his assertion that he had never said anything like “stop Walker.”

Because Chisholm’s alleged private comments to Lutz were clearly not made “in the course of any investigation,” Chisholm’s letter did not deny them.

This omission is consistent with the DA’s previous non-denials.

When this reporter sought comment in a Sept. 5 email about Lutz’s allegations, the only response came from Samuel Leib, Chisholm’s personal lawyer. He called them a “baseless character assault” that “is inaccurate in a number of critical ways,” adding that “John Chisholm’s integrity is beyond reproach.”

Leib provided no specifics. He also ignored this reporter’s follow-up email the same day requesting that he “identify specifically each of the ‘number of ways’ in which you contend the passage that I sent you is inaccurate.”

Chisholm and Leib have also ignored an Oct. 3 email from this reporter containing 37 questions about Lutz’s allegations.

The closest that Chisholm appears to have come to denying Lutz’s specific allegations may have been on Sept. 10, when Jason Stein of the Milwaukee Sentinel reported that “in a brief interview, Chisholm denied making those comments.”

But the article did not disclose what Chisholm had been asked, by whom, what had been his response, and which (if any) “comments” he specifically denied making.

So far as the public record discloses, the newspaper has never pressed Chisholm for a more specific response to Lutz’s allegations.

Nor is there any public-record evidence that the Journal Sentinel has ever pressed Chisholm for access to the recording of the 2013 phone message in which – the newspaper has repeatedly claimed, based on a vague allegation by Leib – Lutz made a “death threat” against Chisholm and his family.

Neither Chisholm nor the Journal Sentinel has ever suggested a motive for Lutz to lie. He says that his motive has been to protect the freedom of speech – including his own First Amendment right to speak out in favor of Justice Prosser – by telling the truth about the political agenda driving Chisholm.

“I don’t like what Chisholm has done,” Lutz told this reporter, “in regard to political speech that he disagrees with.”

Sheriff Clarke doesn’t like it either. And when he heard Lutz detailing his allegations of prosecutorial bias in recent radio interviews, “I asked myself, ‘What’s in it for Mike Lutz to do this? He did it anonymously.’ I don’t see Mike having any agenda here.”

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I agree that waterboarding is torture as colloquially understood by many of us and that it should be banned.

But that does not mean that the CIA’s proposal — eventually endorsed by officials up to and including Present Bush — was illegal under the extremely narrow definition of "torture" that Congress wrote in 1994 when it made the practice a federal crime.

Indeed, the recently released report by Associate Deputy Attorney General David Margolis, the senior Justice Department expert on legal ethics, implicitly contradicts the strikingly superficial analysis underlying Holder’s assertions that waterboarding is illegal torture.

And while Margolis did not directly rule on the legality of the CIA’s interrogation methods, his 69-page analysis more strongly supports the view that the kind of waterboarding that the agency proposed in 2002 was not illegal torture.

You would hardly guess this from the media coverage after Justice released the Margolis report and related documents on February 19.

The report’s central conclusion absolved Jay Bybee and John Yoo — the Bush-appointed Justice Department lawyers who prepared two key "torture memos," both dated August 1, 2002 — of unethical conduct. Margolis firmly rejected a pervasively slanted, and unethically leaked, effort by Holder protégés in the Justice Department’s Office of Professional Responsibility to subject Bybee and Yoo to discipline from the bar. (The OPR is not to be confused with the Office of Legal Counsel, known as the OLC, which Bybee headed in 2002 with Yoo as a deputy.)

But Margolis did criticize Bybee and (especially) Yoo for "poor judgment" in portions of their memos. He also asserted that his decision "should not be viewed as an endorsement of the legal work that underlies" the torture memos.

The media have lavished attention on the "poor judgment" part but rushed right past the report’s implicit contradiction of both Holder’s waterboarding analysis and others’ assertions that the CIA-proposed techniques were clearly illegal. Reporters also paid little attention to Margolis’s expert evisceration of the OPR lawyers’ sometimes shoddy legal analysis, disregard for their office’s own rules, and shifting rationales in attacking Bybee and Yoo.

These aspects of the Margolis report — written by a widely respected career lawyer who has heard appeals from OPR targets for 17 years — are consequential.

They should shake the near-consensus in many circles that the entire Bush interrogation program was not only brutal and excessive, as I believe, but also illegal torture. And they pose a test for Holder and the congressional Democrats who have so fervently denounced the Bush team for employing waterboarding and other brutal methods.

If anybody violated an ethical standard, it would be whoever leaked a draft memo attacking Jay Bybee and John Yoo.

If these Democrats really want to make it clear that any future U.S. interrogators who use brutal techniques should be prosecuted, then they should propose tough, clear new legislative language — and take the political heat for it. Failure to do that will suggest that their attacks on Bush "torture" are driven more by political opportunism than by fidelity to law or human rights.

Let’s compare Holder’s January 15, 2009, Senate confirmation testimony and subsequent answers to written questions about waterboarding with relevant portions of the Margolis memo.

Holder: "If you look at the history of the use of that technique, used by the Khmer Rouge, used in the [Spanish] Inquisition, used by the Japanese, and prosecuted by us as war crimes — we prosecuted our own soldiers for using it in Vietnam… waterboarding is torture…. It is clear, and has historically been uncontroversial, that waterboarding is a form of torture."

Margolis: The "historical examples of ‘water torture’ " used by the OPR to condemn Bybee and Yoo, including those cited by Holder, "are distinguishable from the [CIA’s] proposed technique and were not analyzed under language similar to the torture statute."

In other words, Holder’s historical examples prove nothing. They cited tortures far more brutal than the technique that the CIA proposed in 2002. They also involved laws that predated the 1994 legislation and imposed broader criminal prohibitions.

And, as Margolis could have added, those not-very-relevant examples have been almost the only scrap of legal analysis that Holder has ever offered to support his condemnations of the CIA’s waterboarding.

Holder also dismissed, in May 2009 House testimony, the fact that thousands of military trainees have been waterboarded without suffering the "severe physical pain" or "prolonged mental harm" that would violate the anti-torture law. The training experience was "fundamentally different" from waterboarding a prisoner, he said.

Margolis, however, found the training experience "directly relevant" to the Bybee-Yoo determination "that the waterboard did not cause severe physical pain or suffering" (Margolis’s emphasis). He also found that despite the difference in the likely psychological effects on prisoners, the training experience would also "be relevant to the threshold question of whether everyone subjected to the waterboard suffers severe mental pain or suffering."

Margolis’s only criticism of Bybee and Yoo’s analysis of waterboarding was that its phrasing at one point could be read as erroneously suggesting that the absence of severe effects on trainees "alone virtually eliminated the need for an individual assessment" of how Abu Zubaydah, the first prisoner whom the CIA wanted to waterboard, might be affected. But this "was not critical to the approval of the techniques on Zubaydah," Margolis added, because another portion of the same memo noted that a CIA psychological assessment had already found that Zubaydah "would not experience any mental harm."

More broadly, nothing in the Margolis report says or implies that waterboarding or any other technique, with the limitations that the CIA proposed to Bybee and Yoo, was illegal. It must be noted that CIA operatives in the field later went far beyond those limitations — so far as to veer into illegal torture, in my view. (See "CIA Torture — and a Spanish Inquisition," NJ, 4/4/09, p. 12.)

Margolis arguably implied that the CIA’s policy on waterboarding may have been legal, when he wrote that "colloquial uses of the term ‘torture’ have little relevance to determining whether a particular technique violates the torture statute."

Then there is the striking, widely ignored fact that even the OPR found no ethical violation or poor judgment when it assessed the subsequent approval of techniques that included waterboarding by Steven Bradbury as head of the Office of Legal Counsel years after Bybee had taken a federal Appeals Court seat. This exoneration refutes Holder’s assertion that waterboarding is clearly illegal torture.

Indeed, no fewer than 14 other senior Bush administration lawyers eventually concurred in the Bybee-Yoo conclusion that the CIA-proposed waterboarding did not violate the torture law. The available evidence suggests that most of them did a more careful legal analysis than Holder has given any indication of doing.

It’s important to understand that there were two Bybee-Yoo torture memos that were dated August 1, 2002. The first, a general discussion of the torture ban, executive power, and possible defenses to prosecutions, was so flawed as to be repudiated by the Bush Justice Department in 2004. Not so the second memo, which was more important because it detailed the 10 CIA-proposed interrogation techniques and the reasons for approving them.

Margolis’s criticisms of this second memo were relatively minor: the above-noted point about needing an individualized psychological assessment, and a comment that the memo "would have been more complete" had it discussed how the CIA would keep detainees awake when using sleep deprivation.

Margolis’s only tough criticisms of Bybee and Yoo were aimed at their more general, less important memo.

He wrote — much as I did in June 2004 — that this first memo took an extraordinarily aggressive, "expansive view of executive authority and narrowly construed the torture statute while often failing to expose (much less refute) countervailing arguments and overstating the certainty of its conclusions." (See "The Torture Memos: Putting the President Above the Law," NJ, 6/12/04, p. 1835.)

Bybee and Yoo thus showed "poor judgment," Margolis wrote, and Yoo’s work "reflected his own extreme, albeit sincerely held, views of executive power."

At the same time, Margolis explained that the first memo’s flaws "were not likely to cause prejudice because the [more restrictive second] memo… approved specified techniques against a specific individual and advised that the advice would not necessarily apply if the facts changed."

Again, no hint that Margolis considered any of these techniques illegal.

His bottom line was that Bybee and Yoo did not "knowingly or recklessly provide incorrect legal advice or [act] in bad faith" and thus violated no ethical standard.

But somebody else did violate an ethical standard. That would be whoever leaked last year the conclusions of the confidential, now-overruled OPR draft attacking Bybee and Yoo. When will the attorney general order an internal investigation of that?

This article appeared in the Saturday, February 27, 2010 edition of National Journal.

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"While her confirmation hearings drew plenty of coverage last week," wrote Howard Kurtz in the Washington Post, "the level of media excitement hardly matched that surrounding Mark Sanford’s Argentine affair, Sarah Palin’s Alaskan exit or Michael Jackson’s untimely departure."

True enough. But it’s also true that most of the media missed a major opportunity to use the hearings as a peg for background pieces and news analyses explaining to readers and listeners some of the big issues on which so little light was shed by the senators and the nominee.

The media know how to do that sort of thing in other contexts. Consider the way in which the New York Times and others have used the 40th anniversary of the first moon landing for fascinating explorations of the past, present and future of space travel, including everything from the lunar lander’s technology to the astronauts’ subsequent lives.

But how much insight did the media offer on the complex but important issues that came up during the Sotomayor hearing? Issues such as these:

• Are judicial confirmation hearings so empty because of Judge Robert Bork’s defeat in 1987, as some suggest? Is it really true that when Bork was rebuffed after candidly discussing his conservative, "originalist" judicial philosophy, his fate proved that candor would be fatal for any nominee, thus dooming all future hearings to vacuity?

• What are the basic contours of, and objections to, the bumper-sticker versions of the conservative (judges-should-never-make-law) as well as the liberal (judges-must-make-law-and-should-reform-it) approaches to constitutional interpretation?

• Are today’s Supreme Court conservatives themselves "judicial activists," as suggested at the hearings by Democratic senators and elsewhere by leading conservatives such as federal appeals court judges J. Harvie Wilkinson and Richard Posner and National Review writer Ramesh Ponnuru?

• Do Judge Sotomayor’s assertions that she is a successful product of affirmative action argue in favor of her own longtime advocacy of using numerically based racial preferences in allocating employment opportunities and college admissions? Or does her stunning success in college and since argue for refocusing affirmative action on opening opportunities for less-than-affluent people of all ethnicities who have shown themselves to be exceptionally capable of overcoming humble origins?

• Why did the Supreme Court majority — unlike Judge Sotomayor — perceive in the New Haven, Conn., firefighter case a tension between numerically based "disparate impact" lawsuits by minorities against employers and the principle of nondiscrimination at the heart of the original 1964 Civil Rights Act as well as (conservatives claim) the Constitution’s equal protection clause?

• How plausible is Judge Sotomayor’s explanation that her three-judge panel’s cursory rejection of the lawsuit by the 18 white (including one Hispanic) firefighters against New Haven was required by her own appeals court’s judicial precedents and thus not predictive of how she might rule as a justice?

• What is the significance of Republican criticisms of Sotomayor’s approach to the raging liberal-conservative debate in recent years about whether judges should sometimes take account of foreign and international law in interpreting the U.S. Constitution?

I will seek to shed light on these issues in future posts, with links to relevant documents and more in-depth discussions by experts of various ideological persuasions.

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We in the media habitually describe the Supreme Court as made up of four conservatives, four liberals and one swing-voting centrist, Anthony Kennedy. These labels serve reasonably well to situate the justices on the ideological spectrum compared with one another.

But while the court is sometimes called "conservative," it looks pretty liberal if we chart the justices’ rulings and individual views against general public opinion, as measured by poll results on issues including abortion, race, national security, religion, gay rights, gun rights and the death penalty.

The four more liberal justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — all fall markedly to the left of public opinion on every one of the abovementioned issues. So does Kennedy, when it comes to national security, religion, gay rights, the death penalty and to some extent abortion. Judge Sonia Sotomayor is widely expected to be at least as liberal as Souter, whom she would replace.

If President Obama gets an opportunity to replace one of the five more conservative justices, the new majority will be quite dramatically to the left of public opinion. And voters will, of course, remain powerless to overturn the justices’ constitutional interpretations.

Justices Antonin Scalia and Clarence Thomas fall markedly to the right of center. But the same does not appear to be true — not yet, at least — of Chief Justice John Roberts and Justice Samuel Alito.

Indeed, while those two George W. Bush appointees appear to be politically conservative by some measures, the description of them as far right by the New York Times editorial page says more about the editorialists than about the justices. So far, Roberts’ and Alito’s opinions and votes have been considerably closer to the center than those of the four liberals.

This is not to suggest that the goal of constitutional interpretation should be to mirror public opinion. But insofar as the goal of journalism should be to mirror reality, it may be interesting to compare the justices’ views — and journalists’ portrayal of them — with public opinion on some big issues.

• Abortion. Polls have shown for many years that although the public does not want Roe v. Wade overruled — as Scalia and Thomas would do — large majorities support restrictions on abortion that the four liberals would strike down. These include the congressional ban on "partial-birth" abortion. Majorities also support some other restrictions — such as banning abortions in the second and third trimesters and spousal notification requirements — that Kennedy has joined liberals in striking down. In a Gallup poll this May, a combined 60 percent of respondents said abortion should be "legal only in a few circumstances" (37 percent) or "illegal in all circumstances" (23 percent); 22 percent said abortion should be "legal under any circumstances"; and 15 percent said "legal under most circumstances."

Roberts and Alito have not yet specified their views on some abortion-related issues. But their approaches so far — upholding some democratically adopted restrictions on abortion without overruling Roe — have been consistent with mainstream public opinion.

• Racial affirmative action preferences. Respondents called for abolishing affirmative-action programs that give preferences to blacks and other minorities by 55 percent to 36 percent, according to a recent Quinnipiac poll (discussed in my June 6 column). In decades of previous polls the public has turned thumbs-down on racial preferences by lopsided margins. In a June 2007 Gallup poll, for example, 70 percent of respondents said that colleges should admit students based solely on merit and only 23 percent said that racial or ethnic background should be considered to promote diversity.

The four liberal justices have consistently supported such governmental racial-preference programs. Kennedy has voted to strike some down but has not joined Scalia and Thomas in condemning virtually all of them. It is not yet clear whether Roberts and Alito would go that far. But if they did, public opinion would approve.

• National security. The public disapproved by 61 percent to 34 percent, according to an ABC News/Washington Post poll, of the decision last June in which the four liberals and Kennedy made it easier for Guantanamo detainees to seek judicial review. Roberts and Alito dissented, along with Scalia and Thomas.

• Religion. Polls have shown consistent, strong approval of the nondenominational, nonparticipatory types of school prayer that the liberals and Kennedy struck down in major precedents in 1992 (before Ginsburg and Breyer) and 2000. Scalia and Thomas dissented. Roberts and Alito had yet to join the court for those cases, but those two (and Kennedy) sided — to a limited extent — with Scalia and Thomas in a 2007 decision curbing taxpayer lawsuits that challenged some uses of tax money to support religion.

• Gay rights. While a May 2003 Gallup poll showed that respondents thought sexual relations between consenting gay adults should be legal, by 60 percent to 35 percent, the margin declined sharply after the four liberal justices and Kennedy ruled the following month that the Constitution protects such sexual relations. A Gallup analysis found that the decision — which helped spur the Massachusetts Supreme Judicial Court to strike down the ban on gay marriage — had sparked a backlash by racing ahead of public opinion. The "should be legal" margin had crept back up to 56-40 in a Gallup poll this May. Scalia and Thomas have argued for leaving gay rights to the democratic process. Roberts and Alito have yet to face a gay rights case.

• Gun rights. A February 2008 Gallup poll showed respondents favoring, 73 percent to 20 percent, an individual right to own guns. That was the position of the court’s conservatives and Kennedy — with the four liberals in dissent — in a June 2008 decision striking down a strict District of Columbia gun control law and upholding D.C. residents’ rights to keep guns in their homes for self-defense.

• Death penalty. An October 2008 Gallup poll showed public support, by 64 percent to 30 percent, of "the death penalty for a person convicted of murder." The poll found that 21 percent of respondents said the death penalty was imposed "too often," 23 percent "about the right amount," and 48 percent "not enough." The Supreme Court’s liberals, plus Kennedy, have banned use of the death penalty on murderers who were mentally disabled or younger than 18 and on rapists of young children.

• On the other hand: In a September 2007 Gallup poll, more respondents saw the court as "too conservative" than as "too liberal," by 32 percent to 21 percent. Forty-three percent called the court "just about right." This seems contrary to the issue-specific polls. Might that have something to do with the way the media has portrayed the justices?

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