Thursday, May 19, 2016

Did You Know That Gary Weiss Speaks?


Yes, he does, or to put it another way, I do.

My well-received speaking engagements have spanned many topics, from media bias in the Middle East to Ayn Rand. I've spoken before New York Stock Exchange attorneys on naked short-selling, and I've been on a panel of the North American Securities Administrators Association discussing securities arbitration. Venues have ranged from a college in Texas to Washington to a senior center in Riverdale.

One topic that interests me greatly is weight-loss surgery. I've written twice on the subject, once for Money Magazine and more recently, on the long-term complications, for The New York Times. So if anyone needs a speaker on that, from the patient perspective, I'm you're man.

© 2016 Gary Weiss. All rights reserved.

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Saturday, May 07, 2016

Overstock.com CEO Patrick Byrne Loses 'Deep Capture' Libel Suit

Defendant Mark Mitchell: "the truth was of no consequence"

No libel suit victory is worth celebrating, not even the famous suits against the anti-Semite Henry Ford and the red-baiter Westbrook Pegler. The same goes for the C$1.2 million libel judgment just awarded against Overstock.com CEO Patrick Byrne and his minions for unleashing a campaign of lies.

While occasionally used to advance the cause of truth, as they were against Ford, Pegler and Byrne, more frequently libel suits are used to punish and harass reputable journalists. This is one of those rare cases when a libel suit was used against a corporate astrotufing site dedicating to spreading kooky conspiracy theories and Trumpesque smears.

In a scathing decision released on May 6, a Vancouver court found Byrne and his "Deep Capture" faux-journalism venture had fabricated lurid accusations of criminal conduct against a Vancouver businessman named Aly Nazerali. The damage award consists mainly of punitive and aggravated damages, and the judge found that the conduct of Byrne and his minions was so egregious that he slapped a permanent injunction on the defendants.
Judd Bagley after his arrest for forgery

I've written about Byrne quite a bit in the past because he was the very worst of Corporate America, from his bizarre stock-market conspiracy theories to his well-documented accounting games, which he countered by vicious personal attacks on critics and the media. He is a kind of small-bore Donald Trump, a "born on third base who thinks he hit a triple" kind of guy. Byrne lies so frequently and with such gusto that it's hard to say if he can distinguish fact from fiction. He is on indefinite leave from Overstock because of a Hepatitis C infection, a disease ordinarily caused by intravenous drug use—or, if you believe him, a wound sewn up by "barefoot doctor in China."

Byrne's main vehicle to attack his critics was his Deep Capture website, which was created for him by his PR man, a convicted forger and drug addict named Judd Bagley, and the ex-journalist Mark Mitchell, who was fired several years ago from his former job at Columbia Journalism Review.  (Bagley went back on the Overstock payroll before the Nazerali articles were published. He was dismissed from the case, as was Overstock itself.) Mitchell wrote the Nazerali articles and is the main architect of this fiasco. His strange behavior—more like a television detective than a journalist—was described in detail in the decision.

The 102-page judgment, which I've embedded at the bottom of this blog item, is worth reading for anyone who has followed the erratic career of this CEO, who lately has reinvented himself as a Bitcoin advocate. Long before this suit was filed, Byrne was noted for his rich fantasy life. Once he recounted how a gangster straight out of a film noir once sat down next to him at a bar and made threats out of the side of his mouth. He fancied himself "Wall Street's worst enemy," and he expended considerable effort finding journalists dumb enough to believe him (his only success outside Utah was Cade Metz of Wired).

Byrne also has political ambitions, once financed a failed school-choice initiative in Utah, is a major GOP donor and is almost single-handedly financing the Utah governor campaign of former Overstock chairman Jonathan Johnson. The latter has repaid the favor by calling the Nazerali suit "spurious."

As recounted in a November 2015 article in The Daily Beast, the articles made wild accusations. If true, you'd think Nazerali would be in Guantanamo, not Vancouver:
. . . Mitchell described Nazerali as a man in cahoots with “Osama Bin Laden’s favorite financier,” and said that he worked with a variety of criminal outfits around the globe, including La Cosa Nostra, the Colombian drug cartel, the Russian mafia, and various “jihadi terrorist groups” including al Qaeda’s Golden Chain. According to court documents, Deep Capture also accused Nazerali of “delivering weapons to war zones in Africa and to the mujahedeen in Afghanistan,” of orchestrating “small-time ‘pump and dump’ scams… [and] bust-outs, death spiral finance and naked short selling,” and of carrying out dirty work for “a Pakistani ISIS asset” who “works for the Iranian regime.”
Nazerali was raked over the coals by Byrne's lawyers in days of pretrial examination. But at the trial the defendants did not put on a case, producing not a shred of evidence. The judge blasted Byrne & Co. for abusing pretrial discovery, saying:
The reasonable inference to draw is that they knew from the beginning of the trial that they could not justify the Articles’ false and extravagant language. Their approach to the defence of the action was an attempt to intimidate the plaintiff and to humiliate him into abandoning his lawsuit.
In justifying the award of punitive damages, the judge pointed to the extreme malice shown by Byrne and Mitchell, "the overt animosity, even hatred of the plaintiff, expressed by Mr. Byrne," their "reckless indifference for the truth," their "reckless disregard for the reputation of non-parties." The decision singles out Mitchell's creepy attempt to blackmail Nazerali, contained in an email published in the decision.

Among the highlights, so to speak, of the decision:
• "Mitchell did not attempt to contact the plaintiff before posting the Articles;" and blew off Nazerali's effort to get him to remove his lies. "No effort of consequence was made after Mr. Nazerali contacted Mr. Mitchell to review the Articles to determine if they were false. On the contrary, Mr. Nazerali’s approach to Mr. Mitchell was treated with scorn."

•  Byrne said to Nazerali during a deposition, in the presence of the court reporter and parties: "I know your kind, you are not the kind that does the dirty work themselves. You employ others to do your dirty work.  I hate your kind of people."

• Mitchell emailed Byrne “this is going to be fun” and said, "I am open to changing the story if he can provide other verifiable information that would be valuable” and “I might even suggest that I will be willing to remove his name from the story altogether if he were to provide me with, say, trading records" on a "global terrorist."

• Mitchell added: “if Nazerali agrees, nothing lost, after he gives me the information I will just put him back in the story. Sleazy, but, well it is what it is”;

Sleazy is putting it mildly. The decision concluded:
Mitchell, Byrne and Deep Capture LLC engaged in a calculated and ruthless campaign to inflict as much damage on Mr. Nazerali's reputation as they could achieve. It is clear on the evidence that their intention was to conduct a vendetta in which the truth about Mr. Nazerali himself was of no consequence. Their mission was to expose what they conceive to be corrupt business practices damaging to the global economy. Mr. Nazerali became a convenient means to that end, even when he himself could not be demonstrated to be corrupt.
"The tortious misconduct of Mitchell, Byrne and Deep Capture LLC demonstrates an indecent and pitiless desire to wound," the decision continued.

The court imposed a permanent injunction on Mitchell, Byrne and Deep Capture, as well as Google, given the likelihood that they will seek to evade payment of the judgment, as well as their "apparent intention to inflict as much damage on the plaintiff." The judgment also provides for imposition of costs, which means that Nazerali can petition the court to award him his legal fees.

The verdict, while not in the megabucks frequently awarded in U.S. courts, is large, perhaps even a record, by Canadian and especially British Columbia standards. At the current rate of exchange it comes to about $925,000 (U.S.), which is well within the capacity of Byrne's trust fund. His father was the insurance mogul John J. Byrne.

Like I said, no libel verdict is worth celebrating, not even this one, brought by the victim of faux journalism written by a faux journalist in the pay of a deranged CEO. I hope that this one doesn't become weaponized against real journalists who have written real articles about bad people. If that happens, it will mean that Byrne, described a decade ago as a "menace" by Joe Nocera of the New York Times, has once again stuck it to the press.


Some previous posts on the libel suit; see also posts tagged "Deep Capture":
© 2016 Gary Weiss. All rights reserved.

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Thursday, March 31, 2016

Announcement re Mideast Dig (formerly "Mideast Reporter")

A note to readers:

"The Mideast Dig"
Please be advised that I am no longer associated with The Mideast Reporter (N/K/A "Mideast Dig"), which I co-founded and co-edited from its inception in 2013 until November 2015. I have had no editorial or marketing role in the venture since then. I had my name removed from the Mideast Reporter's "Masthead"and "About" sections, but it was on marketing and fundraising materials that were widely distributed, as well as public documents and this recent Jerusalem Post article.

I also resigned from the board of directors. Board member Brooke Goldstein, one of two independent directors, resigned in mid-December 2015, leaving two persons on the board of directors, one of whom is the co-founder. The managing editor, Robert J. Rosenberg, resigned in early December 2015, leaving one person (the other co-founder) on the editorial staff.
"The Mideast Reporter"

To fulfill its mission, such a venture must be nonpolitical, avoid advocacy, eschew personal attacks in its media criticism, and reflect multiple viewpoints. Its management needs to devote itself full-time to the project, avoid conflicts of interest and cronyism, and eschew the natural tendency to turn it into a personal platform or "ego trip." Otherwise the venture risks becoming yet another pro-Israel blog, and, by over-promising, perhaps does more harm than good.

(Originally posted December 7, 2015; subsequently revised.)

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Wednesday, March 23, 2016

The Vindication of Steve Emerson?

In a pair of blog posts early last year I examined the smearing of Steve Emerson, the terrorism expert who was keel-hauled through the media after referring to "no-go zones" in European cities. That was an overstatement at worst, and he apologized for it, but nevertheless he was attacked and denigrated.

Then came the terrorist attacks in Paris and, yesterday, in Belgium. The State Department issued a travel alert for all of Europe in the aftermath of the latter. It says as follows:

The State Department alerts U.S. citizens to potential risks of travel to and throughout Europe following several terrorist attacks, including the March 22 attacks in Brussels claimed by ISIL.  Terrorist groups continue to plan near-term attacks throughout Europe, targeting sporting events, tourist sites, restaurants, and transportation.  This Travel Alert expires on June 20, 2016.

U.S. citizens should exercise vigilance when in public places or using mass transportation. Be aware of immediate surroundings and avoid crowded places. Exercise particular caution during religious holidays and at large festivals or events.

It goes on to discuss the steps that visitors to Europe need to take, including "Monitor media and local information sources and factor updated information into personal travel plans and activities."

I'm not traveling to Europe but I am monitoring the media, and what it says to me is that
  • Europe's airports aren't safe;

  • The European security services are bumbling fools;

  • Europe's open borders have effectively made that continent an extension of the Middle East.
In short, all of Europe is a no-go zone, at least at the present time. If I can't go to the airport or take a subway without a risk of being blown to pieces, that indicates to me that I simply shouldn't go there.

Ironically, after Emerson's comments, a great deal of fuss was made about the safety of traveling in Birmingham and other cities with large Muslim populations. I have no doubt about that.  The problem is taking public transportation to and within those areas and then heading to the airport to get out of there.

UPDATE: An article in the New York Times, published March 24 and online the day before, notes that "The enemy’s hide-outs are ghettoized parts of Paris, Brussels and other European cities that amount to mini failed states inside their own borders." François Heisbourg, president of the International Institute for Strategic Studies, refers to them as “'no-go areas for the authorities, who have found it very difficult to get informants and human intelligence,' noting that many of the French citizens who carried out attacks in France lived or were hosted in Brussels neighborhoods like Molenbeek."

© 2016 Gary Weiss. All rights reserved.

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Tuesday, March 15, 2016

Announcement re The Mideast Reporter DBA "Mideast Dig"

A note to readers:

Please be advised that I am no longer associated with The Mideast Reporter (N/K/A "Mideast Dig"), which I co-founded and co-edited from its inception in 2013 until November 2015. I have had no editorial or marketing role in the venture since then.

I had my name removed from the Mideast Reporter's "Masthead"and "About" sections, but it was on marketing and fundraising materials that were widely distributed, as well as public documents and this recent Jerusalem Post article.

I also resigned from the board of directors. Board member Brooke Goldstein, one of two independent directors, resigned in mid-December 2015, leaving two persons on the board of directors, one of whom is the co-founder. The managing editor, Robert J. Rosenberg, resigned in early December 2015, leaving one person (the other co-founder) on the editorial staff.

To fulfill its mission, such a venture must be nonpolitical, avoid advocacy, eschew personal attacks in its media criticism, and reflect multiple viewpoints. Its management needs to devote itself full-time to the project, avoid conflicts of interest and cronyism, and eschew the natural tendency to turn it into a personal platform or "ego trip." Otherwise the venture risks becoming yet another pro-Israel blog, and, by over-promising, perhaps do more harm than good.

(Originally posted December 7, 2015; subsequently revised.)

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Tuesday, February 09, 2016

The Pathetic Irwin Lipkin: a Bernard Madoff Reminiscence


Irwin Lipkin being wheeled out of court

The recent Madoff two-part series on ABC, starring a very convincing Richard Dreyfuss, brought back a flood of memories of my own very limited experience with this long-vanished but still fascinating story. Apart from this article in the old Condé Nast Portfolio I haven't written much, but I did have the interesting experience of attending one of the last acts of this drama. It was the last criminal proceeding in the case, the August 2015 sentencing of a Madoff factotum named Irwin Lipkin.

Lipkin, who was 77 years old, was Madoff's controller. He wasn't important enough to have been mentioned in the miniseries. His defining characteristic is that he was as pathetic as he was guilty. If you weren't acquainted with what he had done, you might feel sorry for him.

Yes, I realize, there is nothing more to be said about Madoff. He's been the subject of umpteen and half books, fifteen umpteen documentaries (one of which followed the ABC film), and an HBO movie in the works, based on the definitive Diana Henriques best-seller. But still, forgive me if I pile on.

It was a gorgeous day in Manhattan—temperature in the lower eighties, low humidity, nice cumulus clouds in the sky—and the view from Courtroom 12D of the federal courthouse on Pearl Street was a stunning vista of Midtown Manhattan to the north. Outside on Broadway there were TV satellite trucks, some parked on the sidewalk. They were there because of the sentencing of a New York City police officer who participated in a motorcycle gang attack on a motorist on the West Side Drive. That's news. Madoff wasn't news anymore, and certainly Lipkin was not.

Lipkin, in his wheelchair, was talking to his attorneys in a seat outside the courtroom as I arrived at about 1:30 p.m., and left soon after for the cafeteria. I heard Lipkin remark that they let his wheelchair right through the metal detector.

The courtroom was filled with about two dozen college students who have been attending court sessions as part of the Columbia University's American Language Program. They were foreign-born students, largely Asian, and were accompanied by two not very talkative faculty members. They took up most of the seats. There were about five reporters present, no federal officers as you sometimes see at these things, no victims, no phalanx of family members of the accused.

Lipkin was wheeled in, pushed by his son Marc, dressed in blue shirt and khaki pants. Irwin Lipkin was wearing a baseball cap that he didn’t remove until later, and a navy blue track suit with two white stripes running down the leg. He was wearing a dark grey warm-up jacket even though the air conditioning wasn’t that high and it was hot outside. He had another outer garment behind him, not worn.

Lipkin was very bald, his head possibly shaved. He had splotches on his face and was very pale. As he sat waiting for the judge he fingered his metal-rimmed reading glasses and a typed piece of paper he had unfolded, the statement he was going to read. He had a box of tissues in front of him that he didn’t need. Two prosecution lawyers and one federal agent occupied the front row of tables and Lipkin and his lawyer were in the row behind them.

U.S. District Judge Laura T. Swain came in at 2:07 p.m. and thanked everyone for attending, including the press. It was the first time I had ever heard the press thanked in such a situation. It made me feel all warm and fuzzy. Judge Swain proceeded to mechanically, for the record, review the various documents agreed to by both sides.

After a brief conference at the bench, Lipkin spoke for the first time in court. He acknowledged in ritualistic fashion, for the record, that he had read and approved some documents. He spoke in an old man’s voice, a bit horse as you’d get from not speaking in public much, but not frail at all, perfectly distinct. At one point his lawyer pointed out that Lipkin cannot stand up. I don’t happen to believe that, but that’s just my hunch. No problem. The judge understands. The prosecution, the judge, everybody is in agreement about what a death’s-door guy this is. The judge talked about his “mental health condition” and the possibility of home confinement.

'The Virtual King of Wall Street'
His defense lawyer, Hackensack attorney Richard Galler, said that he met Lipkin for the first time in 2008, that Lipkin knew Madoff as the “virtual king of Wall Street” and that Madoff had asked him to sign documents that were “not appropriate” and “not accurate.”

In an exchange with the judge, the lawyer said that Lipkin “didn’t understand the greater fraud” and should have “checked further as to the accuracy” of the documents he filed. In the years since Lipkin “voluntarily offered a plea” in 2012 (voluntarily?) his health has deteriorated, said Galler. He has lost 50 to 75 pounds.

“He’s a hunchback,” he added, “He’s a frail gentleman who had a pacemaker replaced as recently as Friday.” He requested a "downward departure" from the sentencing guidelines for bad health. “He couldn’t get around” in prison, said Galler.

Judge Swain responded that there are facilities for sick people. Galler replied that “they’re not as good as the ones outside the prison,” and said that he can now get an ambulance in five minutes, something he couldn’t get in prison. I remember thinking at the time that this attorney was named “Galler” because of his unmitigated gall. But that wasn't fair. Lawyers are paid to represent to give their clients the best possible representation, no matter who they are.

He went on to note that a Dr. Goldstein, a psychiatrist who teaches at Columbia, described Lipkin as a “sad-looking elderly male who looks older” than his age and seemed depressed. That seemed to be the extent of his “mental health condition”—that he’s depressed, evidently because of the crimes he committed. Depressed he got caught.

Galler poined out that all of Lipkin’s kids worked at the firm, and he was proud to bring them into the firm “not knowing the greater fraud.” He added that the government does not dispute his health condition and that the presentence report says there is no chance of recidivism. Lipkin was portrayed as being as meek and harmless as a mouse. He does not leave the house except to go to the doctor or go out on the driveway, and Galler said that he has had to go to Lipkin's house on legal business, and that Lipkin  hasn’t come to the office in a long time.

He went on and on. Mrs. Lipkin was not there “because of prior strokes.” Lipkin “requires mental health treatment. . . . Home confinement is reasonable under the circumstances.” In other words, since he is already confined to his home—no punishment.

I thought back to a mousy little accountant named John McAndris, the 57-year-old chief financial officer of the A.R. Baron penny stock scam firm, who was sentenced to five to fifteen years in state prison in 1998. Hard time, not home confinement. Punished because he didn't let the AR Baron scam continue for another few years until he was old and sick at the time of sentencing.

The prosecutor, Assistant U.S. Attorney David Abramowicz, offered a crisp rebuttal. He noted that fifteen people have pleaded guilty or been found guilty “and only one was named Bernard Madoff.” He was the most culpable and got a severe penalty. The lesson from the parade of guilty pleas is that “Bernard Madoff didn’t do it alone.” He probably wanted to do it alone but he couldn’t. He got help from people like Lipkin.

The prosecutor pointed out that when Lipkin pleaded guilty he admitted he was controller of Madoff Securities and falsified records. He knew it was illegal, so it was not just a case of his being obedient and following orders. Abramowicz noted that Lipkin “did very well for himself,” drawing a salary of $225,000 a year. He wasn’t following orders when he ordered sham trades on his account.

Abramowicz agreed that Lipkin was sick, and that his condition had deteriorated, but felt that reducing the penalty from 10 years (under the guidelines) to zero was “too drastic.” He said the defense hasn’t established that the Federal Bureau of Prisons is incapable of handling someone in his condition.

Yes he is at great risk of falling or suffering injury and that could happen anywhere. He noted that people who are convicted of serious crimes would love the “ability to choose their preferred medical provider.”

Lipkin was impassive as the prosecutor went point by point. Abramowicz said that Lipkin was older than many defendants because he was “so successful at his crime.” He agreed that there was little chance of recidivism but said there was a need for “general deterrence,” so that people committing crimes doesn’t feel that can “keep digging and digging till they get old.”

Lipkin was given his chance to talk. He bent over the desk to read the type on the paper. His old-man’s voice was distinct as he reads from the paper, with occasional out-of-sequence pauses as take place when you read something and aren’t trying to make it seem spontaneous.

He said he was the first person who went to work for Madoff. “Smarter people than myself were taken in by him. . . . If I had known what I know now, I would never have done these things to my family. . . . If I was so smart and knew anything, why would I have given my own money to this man?”

The answer to that last question, I guess, might have been that he knew what he was doing and that he expected to rob people to pay him. That's how Ponzi schemes work. Lipkin talked slowly, apologizing in rote fashion to the victims and his family, his wife and three sons “for what I had caused them during this period of time.”

He gestured now and then with his hands, and you could see his thin, bony fingers. “I don’t know how I can explain this to my wife,” he says. ("Explain what?" I wondered. It had already been seven years since the Madoff scandal broke.) He noted that his son Marc lives with him and his wife and takes care of them.

“This gentleman”—he gestures to the prosecutor—“spoke—I know how he feels—and there’s nothing I can do to change his mind. I only hope you can have sympathy for my wife and family and myself.”

The statement is over. The judge asked a question to Lipkin because she says she is “puzzled” by something he said,. He had admitted in the plea allocution that he had changed figures. If he was now denying what he had previously admitted in his plea allocution, that would upset the apple cart, and upend the lax sentence she was about to impose. So she asked: did he change figures on the books of Madoff Securities?

Lipkin responded that “I honestly and truly do not remember” what happened 18 and more years ago.

Uh oh. Not a good answer. The judge asked his lawyer to talk with him, which he does. Then his lawyer asks him in open court if he’s not denying what he had said concerning changing of numbers. “You may not remember specific ones” but he did commit that offense? “Correct,” says Lipkin. So hard to stop lying when you've lied for so many years.

Through this ritualistic questioning, the judge allowed Lipkin to put the toothpaste back in the tube via the ridiculously leading questioning from his lawyer. The judge then spent ten minutes sifting through papers on her desk and considering her sentence, which she delivered at 2:52.

First she thanked the spectators for their patience. Then she went through the rote remarks, found that Lipkin suffers from physical illnesses, adopted the presentence report, and said Lipkin is “frail and in exceedingly poor health.” He has cardiac and coronary artery problems, reaction to medication, balance and ambulation and falling risk issues. Also he has “mental health disorders” (another reference, apparently, to being depressed he got caught).

Thus there is medical evidence “outside the heartland” of the sentencing guidelines. She went over his offenses—one of the first employees of Madoff until his retirement in 1998. He knew financial information was false. He falsified books and records. Entered fake trades. Arranged for his wife to be on the company payroll and for himself to be on the payroll beyond the period to which he was entitled. He filed false documents with the U.S. Department of Labor concerning that. But she notes he was “not privy to the scope of client-related fraud.”

She points out that the letters sent to her show a “dedicated family man” and that he and his family have suffered financial loss. (How terrible!) She says he has expressed remorse “but he minimized his conduct and recollection of conduct”—apparently a reference to his comments in court today—which destroyed lives, etc etc.

“The court recognizes he has already faced significant repercussions” including a “substantial forfeiture obligation” as well as ostracism and guilt. A lengthy incarceration would be appropriate if not for the health issues. For that a “very substantial departure” is warranted. She then sentences him to six months in prison on each of the two counts, concurrently. Three years supervised release, with 18 months of home detention included in the latter.

The judge reeled off the mandatory conditions of the great, big, walloping slap on the wrist she was giving him for being a key participant  in the Madoff crimes. No weapons. Has to keep taking his meds. No supervised drug testing, that waived because of his medical condition. No caller ID on his phone, no call forwarding. Devils Island conditions, as you can see. No caller ID! Must wear an ankle bracelet.

Judge Swain then proceeded to say that she will recommend to the BOP that he get confined to a medical facility or home confinement, within their discretion, and notes that if there is home confinement it will be in addition to the 18 months he gets as part of his supervised release. Viewed from the rear, as I can't see his face, Lipkin seems impassive during all of this. Galler says Lipkin needs a “hospital setting” and Swain suggests that she get in touch with the “designation officer” of the BOP on that point.

At this point, in a moment of legally required levity, the judge advised Lipkin directly that he can appeal this wet kiss within 14 days, and that if he can’t afford it U.S. taxpayers can appoint a lawyer to rep him. She then directs him to report to the designated facility on Oct. 22, 2015. Finally, the judge said “Mr. Lipkin, the crimes in which you participated are serious and you are paying a heavy price.” In the disruption of his retirement “you have much in common with the thousands of victims of the Bernard Madoff fraud.”

That was so absurd. This man was a perpetrator, not a victim. That was like comparing old Nazi camp guards with survivors, as both are elderly. A shocking statement, or so it seemed to me at the time. The letters sent to her on his behalf, she said, show that he is “much loved and relied upon by the community.” But she didn’t mention that none of these people who love him so much showed up in court. She ended by wishing the family “continued strength and courage.” The proceedings were over at 3:17 p.m.

Postscript: the U.S. Bureau of Prisons was not as lax on Lipkin as Judge Swain was. He went to prison. As of today he was confined to FMC Devens, a federal medical facility in Massachusetts. He is scheduled to be released on April 20, 2016.

His victims, of course, are only part of the way through their life sentences.

© 2016 Gary Weiss. All rights reserved. No republication permitted, in whole or in part, without express written permission.

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Monday, December 07, 2015

Announcement re The Mideast Reporter


Please see updated post, March 2016.

A note to readers:

Please be advised that I have not been with The Mideast Reporter, which I co-founded and co-edited, since Nov. 21, 2015. I have had no editorial or marketing role in the venture since then.

I had my name removed from the Mideast Reporter's "Masthead" and "About" sections, but it was on marketing and fundraising materials that were widely distributed, as well as public documents. 

I also resigned from the board of directors. Board member Brooke Goldstein, one of two independent directors, resigned in mid-December 2015, leaving two persons on the board of directors. The managing editor, Robert J. Rosenberg, resigned in early December 2015, leaving one person (the other co-founder) on the editorial staff.

To fulfill its mission, such a venture must avoid advocacy, eschew personal attacks in its media criticism, and reflect multiple viewpoints. Its management needs to devote itself full-time to the project, avoid conflicts of interest and cronyism, and eschew the natural tendency to turn it into a personal platform or "ego trip." Otherwise the venture risks becoming yet another pro-Israel blog, and, by over-promising, perhaps does more harm than good.


(Originally posted December 7, 2015; subsequently revised.)

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Monday, March 30, 2015

Closing the File on a Criminal and Junkie Named Judd Bagley

Bagley copped a plea to eight felony counts of forgery


Updated October 2015 with police interrogation video and photo of Mark Mitchell.
Updated April 2015 with mugshot and details from arrest record and libel suit.

I've written about a rogues gallery of criminals over the years, ranging from Mafia capos to penny stock hustlers to Bernie Madoff, but by far the most nauseating was a corporate hatchet man from Utah named Judd Bagley.

Bagley (a/k/a "Judson Bagley") called himself a practitioner of "P.R. 2.0" or something like that, but there was nothing novel about his job, which was to be sure that if you were a reporter or analyst, you didn't dare criticize Overstock.com and its much-ridiculed CEO, Patrick Byrne. That was no easy job, because Overstock has been beset by a series of grave allegations since it went public in 2002. Its long history of serious issues runs the gamut from cheating customers, as successfully charged by California prosecutors, to gross mismanagement, to misleading investors about its financial condition.

Byrne after his arrest on gun charges
Bagley did his job with a kind of maniacal zeal. From 2006 to 2011—when he abruptly ceased his activities after a libel suit by a Canadian stock promoter his website falsely accused of ties to Al Qaeda—he frantically stalked and harassed journalists and critics of this third-rate retailer. He didn't beat around the bush; one of his tactics was extortion. In the process he went on and off the company payroll. (At last look he was "director of communications.") Byrne is noted for misogyny and paranoid delusions, so preventing the media from writing negative stuff like this about him, and keeping his arrest on gun charges out of the occasional puff pieces, was a full-time job in itself.

To accomplish his mission, Bagley spun elaborate conspiracy theories and engaged in smear campaigns like this one targeting Bloomberg's Susan Antilla. Bagley stalked the wives and children of critics, once creating a fake Facebook identity for that purpose.

It was a dirty job, but there's little question that his tactics deterred critical coverage by both the media and analysts. In 2010, after a relentless series of posts by Sam Antar, the accounting fraud expert and reformed felon, Overstock restated its earnings to throw out years of phony profits. Sam wrote about it here. See if you can find a reference to it in the media.

Conspiracy theorist/fantasist Mark Mitchell. Deep Capture blog
 
Bagley was joined at Deep Capture by Mark Mitchell, a disgraced former Columbia Journalism Review columnist who wrote for the site meandering, largely fictional paranoid conspiracy theories. He was the principal author of the article that resulted in the Canadian libel suit.

With the media tamed, Bagley has paved the way for Overstock.com chairman Jonathan Johnson, a doctrinaire libertarian and foe of unions, to run for governor of Utah. It's not known if Johnson's political ambitions have curbed Bagley's cyberstalking in recent years. But we can surmise that what I'm about to describe, which has not come out publicly until now, wouldn't do him a bit of good if he runs.

Bagley always seemed a bit strange, a bit "off"—obsessed, paranoid, prone to public tantrums that seemed odd for a p.r. guy. He gave the impression of being a ticking time bomb. Once he directed a racist anti-Indian slur at me because I have an Indian-born wife.  Financial commentator Barry Ritholz once described Bagley as "a career douche bag" and, due to his stalking the children of Overstock critics, a "possible pederast." Still, no one ever quite got a handle on why Bagley was quite so weird. I certainly couldn't figure him out.

Well now we know the answer: It turns out that Bagley was and is a raging drug addict. His habitual lying now makes sense as well, as he is a confessed forger.

Sam Antar's blog revealed today that Bagley was arrested in 2013 on eight felony counts of forging prescriptions so he could illegally acquire the addictive drugs Lortab and Adderall during 2012 and 2013. He pleaded guilty to reduced charges, was fined and sentenced to one year in prison, which was suspended, and 120 hours of community service and probation, monitored by an ankle bracelet. The court filings can be found here. It's not clear from the record if Bagley was required to undergo periodic drug testing. If not, that was a significant oversight.

Bagley tells the truth (for a change)

Sam also reveals that Bagley, who liked to project a "family man" image as he stalked the families of Overstock critics, preys on lonely housewives when he isn't shooting up. (And they would have to be desperate housewives too, given his less-than-matinee-idol physical appearance.)

In lawsuit filings, Bagley confessed to cheating on his wife Kristen with a married woman, the mother of a student at a school where he is a sponsor, the Karl G. Maeser Preparatory Academy in Lindon, Utah. This took place at about the same time he was forging drug prescriptions, and continued even after he was arrested and "rehabilitated." The husband of the woman he preyed upon sued Bagley, who first lied about the affair and blamed his victim. After stonewalling discovery and seeking to smear the husband, Bagley finally admitted to the affair as the evidence mounted up. The suit's filings are online here.

Bagley copped a plea to avoid prison

As Sam points out today, "It was not the sad excess of a man in midlife crisis, but the vicious act of an out-of-control drug addict, a tawdry affair that smacks of sexual harassment--in addition to exposing Bagley as an absolute hypocrite."

Forging a prescription is low-life addict behavior, really high-risk, and Bagley was caught doing it repeatedly. He obviously needed a fix badly.  Lortab, "when used illicitly... is often crushed into a powder and either snorted or an mixed with water and injected. Both of these routes of administration result in a faster and stronger high, often compared to the high of heroin." Adderall has been dubbed "America's Favorite Amphetamine."

After this blog post initially appeared I obtained Bagley's arrest records from prosecutors under the Freedom of Information Act.

The arrest records can be found below in all their nauseating splendor, replete with surveillance photos.

In a rambling confession to police, Bagley tried to excuse his conduct by treating his addiction like an Overstock book-cooking scheme—by lying about it. He said that he needed the two drugs for "focus issues," but that a nurse-practitioner wouldn't give him a prescription, which made him "frustrated," and that he "took it into his own hands to make up the deficit" by forgery. (In other words, he used the same technique he deployed in his smear campaigns against the media and Byrne critics: if Bagley couldn't find anything, he "took it into his own hands to make up the deficit" by making stuff up.)

He went on to wheedle and manipulate the cops as if they were gullible reporters, piling lie upon lie as addicts do, claiming "what he was doing was not for Euphoria or anything like that."

Bagley at the pharmacy that alerted police to his forgeries (security camera photos).

Sure, I guess that's why he committed eight felonies, a crime so blatant that he was not surprised at all when the Lehi Police Department appeared at his door. (He said he "knew what this was regarding.") Fortunately for himself, Bagley wisely copped a plea. He is not so lucky in Canada. Byrne has insisted on going to trial in a libel suit brought by a victim of fabrications on the "Deep Capture" conspiracy site. The trial began in mid-April 2015, and does not seem likely to end well.

Note that the darling man brought along his young daughter while he was getting a fix, according to a surveillance photo from Wal-Mart security in his police file, showing the "suspect" emerging from the scene of the crime.

Bagley brought his daughter to commit a forgery at Wal-Mart (security camera photo).

Since Byrne is now devoting his energies (and Overstock's limited cash) to various bitcoin-related publicity stunts, with Bagley in charge of the hype, it's reasonable to speculate if Bagley has been getting his fixes on the Silk Road since the prescription-forgery route hasn't worked out for him. If I were a Utah narc, that's what I'd be exploring.

I knew that one day Bagley would be disgraced and discredited, and that his victims would be vindicated by his own self-destruction. It was inevitable: he was just too out-of-control. But I assumed the coup de grâce would come from the libel suit or from stock-fraud charges. I never expected that his downfall would be quite so grimy and pathetic.

UPDATE: In October, 2015, Utah authorities released Bagley's interrogation video in response to a Freedom of Information request. It's available below, edited only to remove personal information at the beginning. It's nauseating stuff, to be sure, but the video is filled with stuff that might intrigue any student of criminology, drug addiction, or just plain sleaze.


This line from the Lehi detective interrogating Bagley, at 53:35 in the tape, is particularly insightful:  "obviously this is stuff that has been going on for years." You'd thing he's been reading this blog.

UPDATE: In November 2015, M.L. Nestel of The Daily Beast authored this article on Overstock.com, which contained the first media mention of Bagley's legal troubles. Shortly before the article appeared, Nestel was attacked by Byrne's Deep Capture blog.

© 2015 Gary Weiss. All rights reserved.
------------------------------

My latest book is AYN RAND NATION: The Hidden Struggle for America's Soul, published by St. Martin's Press. Click here to order the book from Amazon.com, and here to order it from Barnes & Noble. Follow me on Twitter: @gary_weiss

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Thursday, January 22, 2015

Steven Emerson, Smears, and the Folly of Ideological Labels

So I see that Steven Emerson has been smeared again by the New York Times, and by the same reporter, Robert Mackey. I'm referring to this article.

For the third time in a week, Mackey has referred to Emerson as a "self-described expert on Islamist terrorism." He really seems to like the way those words roll off his fingers into his laptop, I guess. The only problem is that they are not accurate.

As I pointed out in my last blog post, Emerson is a bona-fide expert on Islamist terrorism, and has been described that way quite a few times over the years by people like A.M. Rosenthal, the paper's former top editor. Calling somebody a "self-described" anything is a back-handed way of calling that person a "fake."

He goes on to say that "Mr. Emerson was shamed into issuing a public apology." Wrong. It's just not accurate to say that Emerson was "shamed" into apologizing for his Birmingham gaffe. He did so with blazing speed. It might be fair to say that he was "shamed" if he had tarried for a week as the condemnations piled up, and then sheepishly admitted his mistake. But he didn't. It's not true. 

The Times has utilized at least seven different ways of referring to Emerson in recent days. I have a problem with six of them.

Apart from Mackey's use of "self-described"—shorthand for "phony" which seems to be the approved format as it has been used three times—the Times has also referred to Emerson as an "expert," utilizing scare quotes as a sly way of saying "he ain't no expert."

In yet another Times article, the newspaper referred to Emerson as "identified as a terrorism expert." Now that's accurate. But that's a bit like saying that Sam Spade has been "identified as a private eye." If I were to say that, I would be implying that a lot of people call Sam Spade a private eye, but that's unproven and I'm noncommittal on the subject. It would be an unnecessarily negative way of referring to Mr. Spade.

A Reuters article on the Times site says Emerson is "described on his website as 'an internationally recognized expert on terrorism.'" This choice of words implies that Emerson is an obscure individual, and that you have to go to the man's website to find this description, suitably set out in scare quotes. It leaves readers with the impression that Emerson is a one-man kook with a personal website, rather than a widely-quoted terrorism authority who runs a substantial nonprofit organization with a staff.

Two AP descriptions of Emerson appear in the Times website. One of them hews  to the Reuters model, albeit without scare quotes, but conveys much the same message that Emerson's credentials are dubious. 

And now we come to the seventh Emerson reference on the newspaper's website. In this AP article, the wire service refers to Emerson as "an American author who often is asked about terror networks."

That's accurate, fair and nonjudgmental. Sure it could say more about him, but it doesn't denigrate  Emerson the way the Times has repeatedly—you might say "obsessively"—been doing. It just states the facts.

The Times clearly has an Emerson problem. It's not really about Emerson, I think, but what he represents.

To much of the media nowadays, people who oppose the spread of Islamist radicalism are viewed as "right wingers."  I experienced that myself a few weeks ago, when I was interviewed about the radical attorney Stanley Cohen, who recently entered federal prison on tax charges amid a blaze of self-generated publicity. Cohen not only represents Islamic radicals in courts but proclaims his love for them. When I expressed disgust about the man in our phone interview, the journalist asked me if I was a "conservative."

Since when have radical Islam and its supporters become standard-bearers of the progressive movement, so the people disgusted by them are "conservative"? The politics of Islamist extremists is close to fascistic. Yet because they oppose the U.S. government, to a lot of people they become latter-day proxies for Che Guevara. Loathsome totalitarians have somehow become "progressive" icons, and people who don't care for them very much have become "right wing" or "conservative." The media has largely adopted this fallacious trope.

By expressing disdain for an enthusiastic supporter of terrorists, I somehow was conflated into a "conservative" by the journalist who interviewed me. He might want to explain that to the Ayn Rand supporters who vituperatively attacked me as a "socialist" and worse when my book Ayn Rand Nation was published.

"Left" and "right" labels, I think, are nonsensical when it comes to the Islamist threat, a movement with historical Nazi ties and a fascist, xenophobic, fundamentalist philosophy that somehow appeals to a goodly number of people on the far left. It would take me a dozen blog posts to explain that grisly phenomenon.

To come back to Emerson: The Times, I think, has pigeonholed Steve Emerson as a right-winger by dint of his strong views on the subject of Islamist extremism. While one might reasonably argue whether the Times has an ideological bias against Emerson and people like him, Mackey clearly does. It was no surprise at all to find this blog post on Mackey's openly slanted work on the Israeli-Palestinian conflict. See also this correction.

You know, the Times could help me a lot in pondering why it's being so unfair and inaccurate by making it unnecessary for me to do so, and correcting its Emerson errors. Come on guys. You can do it.

© 2015 Gary Weiss. All rights reserved.

My latest book is AYN RAND NATION: The Hidden Struggle for America's Soul, published by St. Martin's Press. Click here to order the book from Amazon.com, and here to order it from Barnes & Noble. Follow me on Twitter: @gary_weiss

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Saturday, January 17, 2015

The Smearing of Steve Emerson

I haven't been blogging in a while. I've been busy with other stuff, and nothing has really raised my hackles enough to bang out something here—at least, until now. What has gotten me annoyed has to do with a gent you may have heard of named Steven Emerson.

Now if I said "what has gotten me annoyed is Steve Emerson" you might know why. He's been all over the media, and not in a good way. He has been pilloried, pounded, thrashed, insulted, denigrated and gleefully attacked, all of it because of a gaffe he made on live TV last Sunday. In an appearance on Jeanine Pirro's show on Fox News Channel discussing the rise of radical Islam in Europe, he said that "there are actual cities like Birmingham that are totally Muslim, where non-Muslims just simply don't go in."

Now I don't mean to excuse what Emerson did, but on live TV people sometimes say things they shouldn't have said—become confused, or otherwise bollocksed up. I've probably said things in TV appearances I should have said differently or not at all. (I can't recall any but hey, it's possible!) A friend tells me that he once was told that if he let a five-second gap pass by without speaking on a particular program, that he won't be invited back. In other words: "Don't make the mistake of thinking!"

Fact is, Birmingham is not "totally Muslim," though it has a large Muslim minority, and the idea that non-Muslims "simply don't go in" to the city is also wrong, though there have been quite a few reports of Islamic extremism in the city. Emerson had barely gone off the air before the attacks began. British Prime Minister David Cameron said he "choked on his porridge" when he heard that, and said of Emerson "This guy is clearly a complete idiot." 

Emerson didn't respond with equal vitriol, or try to slime his way out of it. He did the right thing (as did Pirro, who quickly slated an on-air correction). He immediately apologized for his remarks and said that he was making a contribution to Birmingham Children's Hospital. It was a heartfelt apology, but it only seemed to make his critics more gleeful in their increasingly vindictive, personal attacks. The most visible of the news organizations on the attack was The New York Times.

The Times and Fox are rivals in a number of ways—politically as well journalistically. Fox commentators have been critical of the Times, in website pieces like this and in remarks by Fox commentators.  That kind of rivalry is fine. It's healthy. It's as old as Park Row. But character assassination, while it may be an old tradition in yellow journalism, is another matter entirely. It's unacceptable and, more often than not, reflects more on the smearer than on the smearee.

The Times, I regret to say, has smeared Emerson in a very fundamental way, by denying his lengthy record as a terrorism expert. The irony is that it did so in offhand, throwaway remarks—very much the kind of error Emerson made. Except that Emerson apologized immediately. The Times has not.

In an "Open Source" column on January 12, reporter Robert Mackey said as follows:
Then, before that wave of digital outrage had even begun to crest, Steve Emerson, a self-described expert on Islamist terrorism, appeared on Fox News to make the startling and false claim that some parts of Europe — including areas of France, London and the entire English city of Birmingham — “are totally Muslim where non-Muslims just simply don’t go in.”

Note the inaccuracy. Emerson only said Birmingham was "totally Muslim." The transcript shows he made no such claim about London or Paris. But what strikes me as significant, even more than that sloppiness, was the personal denigration of Emerson, which he repeated in another article.

That article, co-written with Stephen Castle, ran at the top of Page A8 on January 13. Most of the article was routine reporting, a rather simple task for two reporters—perhaps deceptively simple, judging from the three corrections that the Times had to run, and which appear at the bottom of the article to which I just linked.

The lead said as follows:
LONDON — First, the owner of the Fox News Channel incited an outpouring of ridicule for suggesting that all followers of Islam must take responsibility for the Paris attacks. Then the Fox pundit who is a self-described terrorism expert caused a second wave of stunned disbelief, asserting that some parts of Europe — including Britain’s city of Birmingham — have become so Islamic they are off limits to non-Muslims.
Note what I've put in boldface in the two excerpts above. It's what's known on the Internet as a "meme." It's what old fogies like me call a "smear." I would define it as a swift, brief description of something or somebody that takes hold and races across the Internet like a mouse with a tabby cat in pursuit. Describing Emerson as a "self-described expert" has been picked up by the British media, in articles like this one in the Independent.

When you call someone a "self-described expert" it's a bit like calling someone a "self-described doctor." Without actually doing so, you're saying that he or she is not a doctor, not a person of learning and experience. He or she is a phony. A charlatan, a quack and perhaps something of a nut. That's what the expression means.

Another way to smear somebody without actually saying anything nasty (but conveying the thought just as neatly) is the use of what are known as "scare quotes." An example:
I just took my car in to the service center, and the "mechanic" there proceeded to create more problems than I had when I went in.
See what I mean? I've just conveyed to you the message that the mechanic at the service center was inept and perhaps a crook, or maybe not even a mechanic at all but some kid who hangs around the place. That's the judgment that any ordinary reader of that sentence would make, if he believes me.

One of the most widely-read and well-respected columnists at the Times is Nicholas Kristof. In a broadside against Fox on January 14,  Kristof said:
Maybe if these “journalists” left their bubble and actually talked to more Muslims, they wouldn’t spew nonsense — such as that Pakistan is an Arab country or that Birmingham, England, is entirely Muslim and a no-go area for Christians. That paranoid claim by a Fox News “expert,” later retracted, led wags to suggest that the city had renamed itself Birming, since Muslims avoid ham.
I can almost understand the first use of scare quotes. It's pretty much part of the catechism of activists and persons with strong political beliefs that people in the media who disagree with them are not really journalists but are something else. Frogs, perhaps? Termites? But not journalists. But the scare quote around "expert" was of a different order of magnitude. It was directed personally against Emerson.

Like the "mechanic" who screwed up my car and isn't really a mechanic, Emerson is not an "expert" at all, you see. That's the message.

I can't really say I blame Kristof. After all, in this article on Emerson's website in 2008, Emerson raked him over the coals for a column that criticized the U.S. and Israel for isolating the Hamas terror group. If someone had so thoroughly disemboweled something I wrote, I might view that person negatively as well. But I do think that if I was writing a column about the person who had slammed me, I would have made an appropriate disclosure to inform my readers: hey look, I feel this way about this person sincerely, but you ought to know that he has gone after me in the past.

But that's just a quibble. The problem with the scare quotes in Kristof's column, and the denigrating "self-described expert" wording in the news story, is that they are just factually incorrect. Whether you like him or not, or agree with him or not, Emerson is a bona fide expert on terrorism. Period.

How do I know this? Well, for one thing, I read it in The New York Times.

I don't even have to go to Emerson's website, where accolades from numerous distinguished persons are quoted, including former New York Times executive editor A,M. Rosenthal, who said:
 "Steve Emerson is one of the nation's best national security correspondents. His investigative work on radical Islamic fundamentalism is absolutely critical to this nation's national security. There is no one else who has exhibited the same expertise, courage and determination to tackle this vital issue."
I think that quote alone would have been sufficient for any fair-minded person to realize that Emerson is not a "self-described" terrorism expert, that the term "expert" can be used to describe him without scare quotes, and that he has been described that way by people who know what they're talking about.

In this 1995 column, Rosenthal called Emerson "an investigator of terrorism who has turned out a strong body of work in film, books and print journalism. Among government officials I talked to, credit for Mr. Emerson was not only acknowledged but volunteered."  In this column in 1996, he called Emerson a "brave independent journalist" who "has exposed the money-raising of Hamas and other terrorist groups in the U.S. and Washington's failure to take effective action under existing law." 

Kristof began working at the Times in 1984, when Rosenthal was still the Times's executive editor. But he and his colleagues didn't even have to rely upon the word of the man who formerly ran their newspaper.

In this article in the Times in 1988, veteran Times reporters Martin Tolchin and Richard Halloran described Emerson as "an expert on intelligence."

In this book review in the Times in 2002,  then-assistant editorial page editor Ethan Bronner didn't agree with a lot of what was in the book. But he still described Emerson as "an investigator who has performed a genuine service by focusing on radical Islamic groups in this country."

You'd never know any of this if you've only relied upon what the Times has said about Emerson in the past few days. The image it has painted of him is that of a guy who sits in his basement, perhaps communicating with flying saucers through a tinfoil hat.

What's dismaying about the way the media has skewered Emerson is not only that in so doing it has smeared him, but that the outrage is so selective. A case in point: Jim Clancy. The CNN correspondent recently retired after 34 years on the job. For two days after his departure, not a single media outlet pointed out that he left in the wake of an incident in which he churned out bizarre anti-Israel tweets in his Twitter account concerning the Charlie Hebdo massacre.

The Times finally picked up on Clancy in an article prepared for the Sunday edition. Until then, you had to read blogs like Mediaite or Israeli newspapers like the Jerusalem Post to learn about the departure of a CNN broadcaster who is much more high-profile than Emerson. A Gawker item, far more informative than the Times piece, appears to have inspired the newspaper to act.

A sampling of his tweets can be found here. They are at least as inflammatory as Emerson's gaffe, except that they were not a gaffe but a reflection of Clancy's opinions, which are far from sympathetic to Israel.  

Yet the delayed coverage of the Clancy mess in the Times was as even-handed and bland as its handling of Emerson was instantaneous, mean-spirited and vindictive. Note the last paragraph of the Clancy piece, which describes the broadcaster's background, as compared to the total absence of such context in the far longer Emerson articles.

Why the disparate treatment and the utter lack of fairness shown to Emerson? One can only speculate. But while we're pondering that, let's see if the Times corrects its smear of Steve Emerson and the error in the "Open Sources" column.

Let's ponder this as well: what makes Emerson an expert is that he has a strongly-held view of the threat posed by Islamist terrorism, one that he has developed over many years of reporting that have strongly shaped his views. These views are not politically correct, and do not adhere to the point of view generally expressed in the Times, especially in its editorials and by its columnists, especially Kristof.

In a broader sense, the Times, as an institution, has to discredit Emerson, because if he is right in his view of Islamist extremism, the Times is wrong. Dangerously wrong.

© 2015 Gary Weiss. All rights reserved.
------------------------------

My latest book is AYN RAND NATION: The Hidden Struggle for America's Soul, published by St. Martin's Press. Click here to order the book from Amazon.com, and here to order it from Barnes & Noble. Follow me on Twitter: @gary_weiss

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