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February 26, 2005

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Comments

Gerry

I just wonder why the Kossacks are not pining for Miller et al to reveal their sources the way they are screaming to hear who gave Gannon whatever information he had (and ignoring the probability that he got it from the pages of a copy of the Wall Street Journal).

BumperStickerist

As much as I'd like to trust Tim and his facts, I'm afraid there's the need to consider innuendo and speculation - let us turn therefore to World o'Crap and its ability to create meta-truth.

http://blogs.salon.com/0002874/2003/10/04.html - bottom item.

There you have it - Novak, Tool, case closed.

As to the Plame's cover ... I mean, she used her *married* name ... that's tricky to the point of devious. The only way she could have been even *more* devious was to make her donation as "Mrs. Joseph Wilson" ... that'd've fooled *everybody*.

Cecil Turner

"That said, the "no underlying crime" argument may be the best Ms. Miller can come up with - as Jack Shafer said, she ought to hire some real attorneys and find out."

I tried floating that argument over at Beldar's Blog, and he slapped me around. (I pretended nonchalance and retreated in good order.) In the absence of expert opinion to the contrary, I'm buying his argument.

TM

Hmm, reviewing the comment thread at Beldar (I am a fan of his too, natch), I see that he never picked up on your follow-up point that Toensig and Sanford could hardly be characterized as mere pundits or journalists.

Their key excerpt would seem to be this:

Federal courts have stated that a reporter should not be subpoenaed when the testimony sought is remote from criminal conduct or when there is no compelling "government interest," i.e., no crime. As two people who drafted and negotiated the scope of the 1982 Intelligence Identities Protection Act, we can tell you: The Novak column and the surrounding facts do not support evidence of criminal conduct.

And their procedural approach is this:

The special prosecutor and reporters should ask Chief U.S. District Judge Thomas Hogan, who is overseeing the grand jury, to conduct a hearing to require the CIA to identify all affirmative measures it was taking to shield Plame's identity. Before we even think about sending reporters to prison for doing their jobs, the court should determine that all the elements of a crime are present.

Beats me. We have Attorney Beldar saying a dismissal at this point is premature. We have two other attorneys saying that, in effect, this is not about dismissing the case or halting the grand jury - it is about quashing a subpoena to a reporter because "Federal courts have stated that a reporter should not be subpoenaed when the testimony sought is remote from criminal conduct".

Well, my question - if the courts have so held, at what point in the process is a reporter allowed to invoke that right, and when would the prosecutor be expected to present his case that a crime has ocurred? It seems like the right time is during the subpoena process.

Now, wouldn't that conflict with Beldar's "Don't Prejudge" position? Well, yes.

My guess is still that other crimes and statutes may be in play, and that this argument won't work. But I think we need to wrestle Beldar a bit more to be sure.

GT

Tom,

Whatever the NYT may believe the DoJ appears to disagree. They have been investigating this for months and even named an independent prosecutor. I have to believe that if it was so easy to establish that no crime had been committed Fitzgerald would have realized that by now.

Also, your post reads as if it's WaPo's opinion that no crime was committed. What you linked to is an OpEd by two GOP operatives which happened to be published in Wapo and the WSJ.

TM

I have to believe that if it was so easy to establish that no crime had been committed Fitzgerald would have realized that by now.

The stock answer is, special prosecutors prosecute. (Hmm, do special counsels counsel?) Anyway, his incentive to bail out is less than normal.

And other statutes may be in play, as I have noted.

As to your comment that "your post reads as if it's WaPo's opinion that no crime was committed", I think I'll stick with what I wrote, which was "The WaPo presented this argument on Jan 12". Surely they did present it, yes? Folks can read the byline, and I don't think "present" and "endorse" have become synonyms yet.

Or criticize the Times, which referred to recent WaPo "articles" - what does that mean?

GT

Well, it wasn't just Fitzgerald. Ashcroft had to approve the naming of Fitzgerald. He must have done so for a reason. AFAIK he was the only special prosecutor so named.

I have no idea what if any crime was committed. I just don't see much value in speculations by outsiders when those in the know seem to think something did happen.

Paul at Wizbang

I'm still trying to fight the addiction and stick to my blogging hiatus. (The shakes are not nearly as bad as they were a few days ago ;-)

Anyway Kev has a self service linkfest going... You should link this. Heck of a post.

P

Gerry

Tom,

I am more than willing to say this does not belong in the courts absent of criminality of the leak to begin with.

But where is the pressure outside of the courts for the reporters to reveal the source? Don't you think it is odd that the Kossacks are not screaming bloody murder and threatening boycotts et al if the Post and the Times do not reveal who in the adminstration was doing Rove's dirty work (as they undoubtably see it)?

Brennan Stout

GT said "an OpEd by two GOP operatives"

When and how did Toensing and Sanford transmute into "GOP operatives"?

Brennan Stout

GT: Correction; Ashcroft did not name or have any role in the selection of Patrick Fitzgerald. Ashcroft excused himself from the investigation and the special prosecutor process so the selection was made by Deputy AG James Comey.

Cecil Turner

TM,
"I see that he never picked up on your follow-up point that Toensig and Sanford could hardly be characterized as mere pundits or journalists."

Yes, but as I had no answer to his point that it was an inappropriate argument for a witness to make, and as even Toensing/Sanford's approach required Fitzgerald cooperate (i.e., "The special prosecutor and reporters should ask . . ."), I took it more as an "asked and answered" rather than a non-reply. And since I'd prefer not to get my butt handed to me twice on one thread . . .

Beldar

To invoke that great scholar of law and logic Don Rumsfield, there are the known knowns, the known unknowns, and the unknown unknowns. Whether a crime has been committed is a known unknown at this stage, and will by definition remain so unless and until a jury returns a conviction or an acquittal.

We have a basic system in which society confers on our prosecutors and law enforcement authorities the duty and responsibility of making determinations about whether to investigate possible crimes. To make those determinations, they have to gather evidence. We give them powerful tools to do so — including the grand jury subpoena. In large part to protect the interests of those wrongfully accused, we cloak those proceedings in secrecy. So for all of us on the outside of the process — pundits, bloggers, investigative reporters, law professors, and even Floyd Abrams (as lawyer for witnesses Miller and Cooper) — the evidence that's already been gathered by the prosecution and the grand jury is another known unknown.

And indeed, that evidence — and what the prosecution and the grand jury and a trial jury and a future judge and future appellate courts will do with it — is a known unknown even for the judge who is ruling on Miller's and Cooper's motions to quash. That judge may have access, in camera, to bits and pieces of what the prosecution has gathered so far. Obviously, however, he can't have access to what the prosecution hasn't yet succeeded in gathering, nor can either of them foresee the future.

To conclude that Miller and Cooper ought not have to testify because no crime was committed, one must thus draw conclusions based on a whole pile of known unknowns. Now maybe there are cases in which all the pertinent facts are sufficiently clear that one could make the required series of inferences and guesses with a high degree of confidence. If the prosecution and grand jury were investigating (hypothetically) Scooter Libby on suspicion that he conspired in the assassination of Abraham Lincoln, I can imagine a judge quashing a grand jury subpoena seeking to require Judith Miller's testimony about Scooter Libby as a secret source. But in this case, given the itty bit of known knowns we have, and the vast number of known unknowns and unknown unknowns, should we turn the system upside down and rush to the ultimate conclusion — guilty or not guilty — at this point? Nuh-uh. That way lies the Mad Hatter, his tea party, and the Queen of Hearts.

Some speculate that the special counsel here has gone power-mad, that he's going to seek an indictment and a conviction of someone to justify his own appointment, etc. Well, that might turn out to be true. But it might not. It seems roughly equally likely to me — while we're guessing about the known unknowns — that the prosecutor is doing his job thoroughly, methodically, and aggressively at least in part so that if he decides against seeking an indictment, or the grand jury decides against returning one at his request, he and they and the system will be duly innoculated against charges of having tanked the investigation.

Whatever else this matter is, I respectfully submit (as one known known) that it's not trivial. I base that conclusion on the nature of the potential charges, not the smoke and heat that's brewed up over them. But all that smoke and heat are relevant, too, because in addition to the national security interests potentially at stake (another known unknown at this point), there are issues of public confidence in law enforcement and justice.

(PS — Tom, I almost challenged your claim the other day that you're the only heir to den Beste for longwindedness-in-blogging, but I decided to make my challenge inferentially and demonstratively.)

GT

Brennan,

That's fine. My point still stands. Ashcroft had to feel the need to excuse himself and Comey had to reach the conclusion that a special prosecutor was needed.

As for Toensing I've seen her argue the GOP side of whatever was the legal issue du jour for many years now on the cable talk shows. I consider that an operative but maybe you disagree with my definition.

holdfast

Proving this case is going to be VERY hard - it seems quite apparent that Plame was not under cover and had not been so for some time (whether it is enough to vitiate the restrictions under the statute is unclear), that her identity was well known in DC circles and that she WAS involved in choosing her eminently unqualified husband for the Africa mission.

So why would the Bush Admin appoint a special prosecutor and keep the investigation going? Simple, it's easier than listening to the Dems, press and Moonbats (but I repeat myself) scream "coverup!!" So now we're investigating a leak, and the way to do that is to find out who leaked, which leads to the folks who are on the public record of knowing the identity of the leaker - the reporters. Well they wanted an investigation - so suck it up princess.

Also, even though Plame and her hubby were clearly acting as political tools and she was not really undercover, it is still bad precedent to allow the publication of an agents' name without any consequences.

Beldar

A comparatively short addendum:

I didn't directly address Toensig and Sanford's argument. I defer to them in general as being more qualified than I am to speak to the statute they helped draft.

But with due respect, they ain't on the grand jury, nor are they part of the prosecution's team, nor are they fortune tellers. Their conclusion -- "The Novak column and the surrounding facts do not support evidence of criminal conduct" -- is at best a wild-assed guess, not because they don't know the statute, but because they can't know yet all of the surrounding facts. Their procedural suggestion -- "Before we even think about sending reporters to prison for doing their jobs, the court should determine that all the elements of a crime are present" -- puts the cart out front and then euthanizes the horse. Whether "all the elements of a crime are present" is the ultimate question; it's why we have trials instead of convicting or acquitting folks based on public opinion polls, newspaper columns, or blog comments.

Sequence matters. Proper performance of distinct assigned roles -- prosecutor, grand juror, witness, trial judge, trial juror, appellate judge, etc. -- matters. It's the difference between "due process" and "random process."

Cecil Turner

"I consider that an operative but maybe you disagree with my definition."

Possibly not the wisest point to make in this discussion, since Novak's characterization of Plame as an "operative" is one of the main talking points to support the "intentional outing" theory.

"I didn't directly address Toensig and Sanford's argument . . .they can't know yet all of the surrounding facts."

I'd like to take this opportunity to gloat over my perceptive intelligence prep of the battlefield (IPB), and clever avoidance of a certain second a** whoopin'. Discretion, valor . . . yep, good stuff.

TM

For GT:

I have no idea what if any crime was committed. I just don't see much value in speculations by outsiders

Well, then, you are on board with my Dec post, my Jan post, and my current post, which says that it may be the best arguement Miller has, but it is not a strong one.

I would say your disagreement is with the Times. And fruitful lines for lefties to pursue might be (a) can we hate J Miller any more than we already do? She got the Times on the wrong side of WMDs, now she has them on the wrong side of the Plame case - what next?

And (b) doesn't this prove that the Times isn't liberal, just stupid? Worth thinking about.

Now, since turnabout is fair play, I note your comment about Toensing and Sanford that they are "two GOP operatives". Toensing you have seen on some TV shows (And she was a staffer for Goldwater). Since I think some of us distinguish between "operative" and
"potentially principled conservative", may I ask whether you do as well? (For example, Paul Begala is a "say anything" attack lefty; I actually think Chris Dodd and Joe Lieberman say what they believe, lots of the time).

And let's note that attack lefties at Media Matters came up with not much on Toensing.

Beyond that, I would love to hear you turn the Sanford bio into "GOP operative". A few snips:

In recent years, Mr. Sanford has represented President Clinton in the negotiation and publication of a book and won libel and copyright cases brought against First Lady Barbara Bush and John Grisham, respectively. He has defended The New York Times in a seminal libel case brought by an author against the Times’ Book Review...

Mr. Sanford is general counsel to the largest and oldest organization of journalists in the United States, and he has represented most of the leading national news media and book publishers including the E.W. Scripps Co., Tribune Co., The Hearst Corporation, ABC, NBC, Fox Television, AOL/Time Warner, Random House, Simon & Schuster and Bertelsmann, A.G.

...Mr. Sanford is a charter Trustee and Chairman of the Board of The Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, and a Trustee and member of the Executive Committee of the National Symphony Orchestra of The John F. Kennedy Center for the Performing Arts. He is also a member of the governing body of the Washington National Cathedral, president of the 13,000-member National Cathedral Association (2003 to 2005) and has served as a member of the governing boards of the National Cathedral School for Girls and the National Presbyterian School in Washington.

Active in civic and philanthropic affairs, he has chaired the 10th Anniversary benefit for the National Law Center for Homelessness and Poverty. He is a member of the advisory board of the Media Law Reporter, published with a grant from the Ford Foundation by the Bureau of National Affairs, Inc.

No comment on whether he walks on water, or just knows where the stumps are. And they are pretty coy about his ties to the GOP - maybe he is a covert GOP operative.

Or, one might almost suspect that you think anyone who disagrees with you is a GOP operative.

And for Mr. Turner:

And since I'd prefer not to get my butt handed to me twice on one thread . . .

Hmm, sell tickets - some folks here would be shocked and, I suppose, delighted. Well, after they got over the fainting spell.

gavin kirk

Funny, Josh Marshall seems to have lost all interest in this case. Considering how much he was hyperventilating over every detail of this story, his silence seems curious. As if it will all be damaging of the press and not Bush et.al.

GT

Tom,

Yes, I think my disagreement is with the Times. Good question on point a). I'd say there is still room to despise Miller even more. And a resounding yes on point b). I don't think of them as liberal at all, at least not in the sense you would call the Washington Times conservative. Not many liberals have kind words for the NYT.

As for Toensing and Sanford I am not saying they would say anything. Then again I wouldn't say that of Begala either. It's just that they have GOP ties and a point of view so I don't think it correct to present them as the view of the WP. That's all. If the Washington Times allowed Juan Cole to publish an Op Ed I don't think it would be fair to present it as representative of that newspaper's views.

And operative is such a nice word!

;)

Glenda

Proving this case is going to be VERY hard - it seems quite apparent that Plame was not under cover and had not been so for some time

No, it's quite apparent that she was under cover-that's why the CIA forwarded the leak to the DOJ was a possible crime, and why the DOJ asked the FBI to investigated the leak as a criminal matter. While Plame had been working at CIA HDQS for at least a couple of years, that doesn't mean that she wasn't under cover.

Lots of CIA Ops Officers are under cover, but still work stateside at CIA HQS. Leaking their names and affiliations would be a crime, although not necessarily a violation of the Agent Protection Act. I think this is what Tom was referring to when he said other laws might apply in this case.

So, while it may be hard to prove this case, it won't be as easy to sweep under the carpet as some (like Mr. Bogus Reynolds) may hope.

Geek, Esq.

Cecil's right--Beldar had the best take on this. Was there a crime committed? Well, let's talk to all of the witnesses before making that determination. Denying the existence of a crime is really not something a third-party witness can do. Especially when all grand jury testimony is sealed--which means the witnesses really can't know what the government knows.

That could be what the Times is thinking, but they'd be wrong. I certainly don't give them any more credit than Cecil when it comes to awareness of the issues.

Ravi

I really don't see the basis for the "I told you so". A Congressional investigation was never an option (since neither the House or Senate Republican leadership are going to permit one to happen). The choice wasn't between a Congressional investigation and a criminal one: it was between a criminal investigation and no investigation at all.

Note that Waxman (among others) has taken the time to file official requests (for information and investigation with executive agencies), call for Congressional hearings and so on to try to get to the bottom of the matter. But, without the power to compel testimony, there is only so far you can go...

Jim Glass

"Meanwhile, an even more basic issue has been raised ... the real possibility that the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law. Before any reporters are jailed, searching court review is needed ..."
~~~~~

That's very amusing at this late date -- but how can the Times now decide to abandon an investigation into criminal behavior at the very highest level of government that it itself has insisted on, solely for its own convenience?

I mean, despite this late conversion by the Times on the road to Leaven^H^H^H Damascus, who can possibly doubt that felonies were committed here at the very highest level?

Why, I just googled "Plame & treason" and got 18 hits on Delong's web site alone. ("Plame & impeachment" got another 19.) Would the Professor steer us wrong?

And on the whole web "Plame & treason" gets > 19,000 hits!

What more proof do you need??

Here's the real story here: The Times' reporters know what happened with this crime -- this treason!

If they were good citizens interested in justice they'd be the first to talk to see justice delivered. Just like any of us here would if we knew the true story behind a felony. (Or be required to do by law, if we didn't want to do it voluntarily.)

But their first concern is protecting their ability to make money by delivering scoop stories based on leaks from Mr. Anonymous, and if they reveal who Mr. Anonymous is here merely for the low purpose of attaining justice then the generic future Mr. Anonymous will be less willing to leak to them, so they will be less able to make money in the future by selling papers to get people to read about such leaks.

I understand that the dead-tree press is under siege by the Internet and all, but financial hardship is not an excuse for covering up treason. Make 'em talk or lock the leg irons on 'em in the dungeon until they do!


Cecil Turner

"Lots of CIA Ops Officers are under cover, but still work stateside at CIA HQS. Leaking their names and affiliations would be a crime, although not necessarily a violation of the Agent Protection Act."

Possibly, but it certainly doesn't meet the IIPA standards, which defines a "covert agent" as someone who (among other things): "is serving outside the United States or has within the last five years served outside the United States."

But the main problem with prosecuting this under the IIPA statute is the INR memo. Assuming the news reports are correct, there's a memo floating around that says Wilson's wife works for the CIA, and doesn't bother to mention it's a secret. Anyone who read that memo could quite innocently bring it up in conversation, and I'm hard pressed to figure what law would be broken . . . but it sure wouldn't be the IIPA.

TM

A Congressional investigation was never an option (since neither the House or Senate Republican leadership are going to permit one to happen).

I would say, "untested". Sen. Schumer's first call, in July 2003, was for FBI involvement (uner the 1982 Act).

But, without the power to compel testimony, there is only so far you can go...

If the Dems had raised a hue and cry for Congressional hearings, it would have been a great opportunity to humiliate the stonewalling Reps.

If Reps agreed to hearings, Dems could have agreed to immunize testimony, so that pleading the Fifth was not an option for WH staffers.

The end result would have been (a) no real chance of criminal convictions, since they would have followed the Oliver North path; (b) a very high chance of public scrutiny of what really happened in the WH, since I don't see how aides could have pleaded executive privilege to shield conversations between themselves and reporters.

Well, the tactic of pushing everything to the Justice Dept and sealing all the testimony has become well-established; the Dems were foolish to play along, IMHO (but they don't take my advice, either).

Jim Glass

Let's all just remember how stylish she and Joe were in Vanity Fair after she was outed and while she was in fear for her life, according to him.

http://www.slate.com/id/2091907

Very cool lady under pressure. Of course, the sunglasses help.

TM

Well, FWIW, having the Times over on my side on the fundamental question of whether a successful prosecution is possible under the 1982 Act is no great joy (although it provides great amusement).

I feel sort of like a great, sick whale has suddenly beached itself on my side of the argument. If anyone could help pull it out to sea, so it could swim off and vex someone else, that would be great. I mean, I suppose I could try to kill the whale and harvest the blubber, but I am just not Inuit (if Juneau what I mean).

Yes, it's late...

Joe Mealyus

Russ: "Did anyone catch the real nut of the commentary in the WaPo by Toensing and Sanford?"

T and S: "We can look, for example, at how the CIA reacted when Novak informed the press office that he was going to publish her name...."

For my money, still the key point. No matter what Beldar or anyone else says about The Law, without the CIA making some sort of effort to stop Novak the whole thing just seems phony-baloney.

Cecil Turner

"No matter what Beldar or anyone else says about The Law, without the CIA making some sort of effort to stop Novak the whole thing just seems phony-baloney."

I'm not sure what to make of that one. It certainly sounded weak, but if the cover is blown, it's blown. Especially if they think more than one reporter has it, there's no way they could use that agent in such a role again. Endangering past contacts is obviously another issue, but she apparently hadn't been very active for some time, which would tend to mitigate that damage. Also, no matter how well-intentioned, a one-sided report of a conversation is incomplete (and Novak had a reason to be defensive when describing it).

To me, the bigger indicator is the behavior of Plame/Wilson, as Jim Glass touched on above. Admittedly the Vanity Fair piece was after the cover was blown, but it still seemed a bit odd. As is the whole concept of using her husband for a non-secret CIA mission, if the mere fact of her relationship with the CIA is really that hush-hush. Meetings with INR folks? Why? Ditto for Wilson leaking details of the mission to the NYTimes. But Wilson starting a huge political firestorm with the NYTimes piece (in her area of expertise) is just out there. Of course that's going to generate some buzz, and it appears to've caused the security lapse (INR memo) that provided the leaker[s] with their information.

And remember, we're talking about a deep-cover CIA operative and a former ambassador . . . world-class experts at keeping secrets. (Many military men carp at Diplomats' seeming cavalier attitude toward classified information, but in reality they do a super job with an amazing volume of very sensitive information.) These two lived operational security for years. Which to me, makes the above behavior inexplicable. Suddenly, they don't seem to take her cover seriously at all. And if they don't, why should I?

AlanDownunder

What Beldar says about equine conveyances.

The NYT position only makes sense if it values scoops more than reportage. *IF* the Plame leaker is also the Miller source for her pre-Iraq exclusives, I don't share the NYT's values.

RedDan

Funny,

Doesn't this whole business with the NYTimes suddenly questioning the illegality of the leaking give you folks just a little bit of pause on a couple of tangentially related, and on going (and going and going) arguments?

Specifically:

1. The NYTimes as a "liberal" paper out to destroy GOP administrations and politicians.

All other arguments aside (NYTimes whoring of blatantly false information in re WMD, NYTimes blatantly ridiculous mischaracterization of Al Gore's statements and behavior, NYTimes gleefully and without shame regurgitating all the spin there was to spin wrt Clinton, Jones, Lewinsky, and etc)....leaving all those and other examples aside...don't you think that if the NYTimes were as you folks like to describe it, they would be jumping at the chance to make a minor sacrifice (Miller, some access, and yet more hatred from the Right) for a major gain (taking down some seriously connected GOP insiders in the current administration via charges of Treason)?

Give up a bishop for a rook? No question in my mind, if they WERE a Liberal tool, they would jump at the chance. I would.

2. Suddenly, the paper with no credibility on anything is the "go to" source for justification of all previous rhetorical, logical, and legal gambits put onto the board by the defenders of the outers of Plame...Quite a rise in status, eh?

My take on the NYTimes remains the same (from my perspective on the REAL Left (as opposed to the "Liberal" left) - profits and access and market share, regardless of which administration or party is in power.

narciso

Oh for god's sake, the law was designed to stop the likes of Agee, and his KGB/DGI influenced Counter
Spy, than Covert Action Information Bulletin and it's
German counterpart Geheim. Agee, said he compiled his
original research at the British museum, but the pattern
of his research, is very much like that of the East German Mader. In 1975 alone, he unveiled Welch, placing
him in Peru, not in Greece; (ironically, Welch had not
even been connected to the Greek junta; having last served in Athens, and Nicosia; a decade before; he burned him out of spite; although he had used the
junta card as a rationalization for the act. He identified Cannistraro,one of the future agreeved water carriers for thePlame case,and a recent Hersh source;later one of the men behind the assasination
manual for the contras, booted to the Afghan theatre,
where according to Gus Avrakotos, was one of the rightist officers, who prevented any scrutiny of the Afghan pipeline when he was a fresh young vice consul in Jiddah,; The left has forgiven him for being one
of those sources, trotted out to stamp down the whole
Gary Webb conspiracy train, a decade before, and
misidentifying? OKC as a foreign terror plot. Gust Avrakotos, then a junior officer in Athens, who was enthusiastic about the Papadapolis-Ionnides regime; later the chief conduit for the Afghan arms pipeline, that Charlie Wilson engineered. Clair George, the Beirut station chief then, the future ops chief during the lead up to the Iran Affair, and along with Dewey
Claridge; one of the strongest detractors to the continuation of Aldrich Ames's agency careerIran Contra; the first founder of the Counter Terrorism
Center, and probably among the most qualified to hold
the post; having begun his career in SouthWest Asia ; Larry Johnson, another of the Plame brethren, a Central American operations man; who I first heard of the night TWA 800 went down over Long Island, floating the terror plot explanation then. In contrast Plame had already been burned by Ames; probably when she was in
Greece, in the early 90s, the same DGI referenced above;
and her cover; was thread bare in the extreme. For those
interested in real spite; Jason Vest of the Nation and
the American Prospect (what's the difference between them;) did reveal the Company's chief undoercover ops officer, along with most his deputies; about a month
or two back; but is he getting a subpoena; how about
Calabresi, who rwrote the follow up Plame story in Time,
and his partner

Cecil Turner

"1. The NYTimes as a "liberal" paper out to destroy GOP administrations and politicians."

I don't know about "out to destroy," but "liberal" seems fair. Citing my second-favorite Pew study on the subject, while most journalists insist the only media bias is at Fox (in stark contrast to public opinion), among those who perceive some liberal bias, the Times is singled out:

Most national and local journalists do not believe any national daily news organization is "especially liberal" in its news coverage. Roughly six-in-ten in both groups (62% national/59% local) say no national daily news organization strikes them as particularly liberal in its coverage. Among the minority that names a specific news organization as being especially liberal, the New York Times was mentioned most frequently (20% national/17% local). [emphasis added]
"2. Suddenly, the paper with no credibility on anything is the "go to" source . . ."

I'm not sure how mocking them for being a year late to acknowledge a story is hailing their wisdom. Neither does the "self-serving" bit say much for their credibility. I'd suggest TM's position is rather more consistent than you credit.

And for all the railing from various left commenters about the Times' Clinton and WMD coverage, the Times certainly didn't make what I'd consider an effective conservative case on either. I'll stipulate there are many on the left who don't care for some of their coverage . . . but I suspect the right is consistently less impressed.

RedDan

Cecil,

You keep trotting out surveys showing how the media, or particular components of it are perceived as liberal by populations or subpopulations in the US.

Fine and good - I freely acknowledge that the media, and specific components of the media are perceived as liberal.

That, to me, points out the fact that the Right has been exceedingly and impressively effective in its propaganda more than anything else.

Perception is not reality.

Propaganda is aimed at influencing perception, irrespective of reality.

The Right has been on a tear about the NYTimes and its liberal bias for many years, and that campaign has been so effective that even many on the Left accept it as Liberal...when in fact it is not.

It is not "Right" - to be sure. But it is most certainly not "Left" and it is barely "Liberal" - there are liberal columnists (Krugman, Herbert, Rich) there are conservative columnists (Brooks, Safire and his soon-to-be-named replacement), and then there are Keller, Dowd, and Friedman...and who knows how the hell to characterize those loons except as "conflicted to the point of incoherency?

As for the coverage - Nagourney, Seelye, Bumiller, Miller hardly qualify as "liberal" in my book or in any of the folks I hang out with, nor do many of the other top-tier reporters.

Again, just because it is perceived as liberal does not make it so.

RedDan

And for all the railing from various left commenters about the Times' Clinton and WMD coverage, the Times certainly didn't make what I'd consider an effective conservative case on either. I'll stipulate there are many on the left who don't care for some of their coverage . . . but I suspect the right is consistently less impressed.

Exactly. The commentators from the Left despise the Times and its coverage.

The commentators from the Right despise the Times and its coverage.

The Times did not make an effective conservative case wrt Clinton or to WMD or to many other issues...nor did they make anything like an effective Liberal case either.

The made no case at all!

They just blather, hem and haw, and navel gaze while raking in large sums of money and maintaining access at all costs.

It is not surprising that something that threatens their access and their image is being so quickly turned on its head. Just when a story that they were playing on their front pages starts to get really serious (like ewwwww Judy might actually have to take personal responsibility for her actions and her use of sources that might just have been using her!) they cut and run like a bunch of pansy-assed cowards.

Hardly "committed Liberals" in my book.

If I were the editor, I would tell Judy to GFH and face the music.

TM

Red Dan - it has been a ong comment thread, but earlier, I suggested this to GT:

... fruitful lines for lefties to pursue might be (a) can we hate J Miller any more than we already do? She got the Times on the wrong side of WMDs, now she has them on the wrong side of the Plame case - what next?

And (b) doesn't this prove that the Times isn't liberal, just stupid? Worth thinking about.

I would say you have taken me up on it.

As to my answers, I have no problem believing that the Times is both liberal *and* stupid. I am assured the combination is possible.

And in this case, the more I think about Beldar's argument, the more I wonder how anyone could doubt it. So, the Times flips, and it won't even help their reporter. Stupid.

Cecil Turner

"That, to me, points out the fact that the Right has been exceedingly and impressively effective in its propaganda more than anything else."

I'm not sure how the right wing propaganda ministry is getting its message out so effectively . . . when their ideological opponents control the preponderance of the media.

"Again, just because it is perceived as liberal does not make it so."

I'd submit the matter is subjective. If the concept of a liberal or conservative media has any meaning, it has to be found in the relative views of the population at large. If that's not an acceptable measure, then it's probably meaningless, and certainly unprovable. I think the media in general, and Times in particular, is biased to the left: more likely to take a position most Americans would describe as "liberal" on any particular subject. Most Americans tend to agree with me. You are welcome to believe the opposite (or, as some claim, that the terms are meaningless), but what limited evidence is available doesn't seem to support your position.

Cecil Turner

"If I were the editor, I would tell Judy to GFH and face the music."

On this (and the "Give up a bishop for a rook" gambit) you appear to be assuming Miller's testimony would hurt the Administration. I don't think that's a given at all. In the first place, if her information is on a senior administration official, it's hard to see why her information would be unique, or more damaging than any other receiver's. In the second, her information could easily have come from some other source, including Wilson or Plame herself. I'm increasingly skeptical there's any "there" there.

RedDan

TM,

I didn't really take you up on your suggestions - I have held those opinions for a long, long time (if you care to, you can search on my username over in the DKos diaries section and find voluminous verbiage on exactly this subject - if you don't care to, you can just take my word for it!).

Re: Judith Miller - She didn't get the NYT on the wrong side of the issue...she got it wrong, period. Dead wrong. Multiple times. Using heinously compromised and self-serving "sources" and compiling a record of really stupid analyses, predictions and rhetoric along the way.

That should worry everyone - getting the WMD thing wrong was and remains a huge problem for the Administration, for the Media, for America, for the world, and for the prospects for any meaningful change in the ME.

Here's a tidbit for ya!

When Wolfowitz, Perle, and the rest were touting their "democratic dominoes" theories on the presser circuit. and I watched along with everyone else, I was not enraged at their rhetoric or their professed ideologies and aims - after all, they were putting forth a modern version of Trotsky's "Permanent Revolution" (and they were and are connected to former Trotskyite lefties, and I am a Trotskyite Lefty, so the affinity for such aims and rhetoric should be obvious...).

No, I was enraged not at the professed goals, or at the stated ideologies behind those professed goals...I was enraged because they were lying about the rationale and the justification, were using stupidly, transparently false basis for their actions, and thereby destroying any possible good that could come out of such revolutionary (and it most certainly IS revolutionary) action.

Judy Miller was and remains part and parcel of that chain of mendacity.

It has to do with the real answer to "Do the ends justify the means" - which does have a real answer, btw.

As for "The Times is not Liberal, it is just stupid" - I would add fat, greedy, lazy, and boring, to boot.

And Liberal and Stupid have gone hand in hand for a long, long time...which is why I am "Red" Dan and not "Milquetoast, Limp, WishyWashy" Dan.

RedDan

As for the real meat of the case,

I think I am with Beldar on this...

If there were no crime or damage done, the CIA would not have pushed, nor would the AG's office agreed to any kind of independent investigation of any sort.

Nor would any of the Judges in questions upheld any of the subpoenae or contempt citations for any of the Journalists.

The justice department and the federal judiciary does, AFAIC, still takes the 1st Amendment very, very seriously where it pertains to freedom of the press. I do not think that Fitzgerald or any of the Judges would have looked for or upheld any of that if there were not good reason.

Was Plame's name known? Was her status known? Were her status and her name known and connected? Were her connections to various front companies and corporations known?

The answer to all of these things, so far as we know based on what is currently public knowledge (a key point, as Beldar points out), is "Not before Novak made them known based on his un-named sources."

That is bad, and as an official member of the America-hating, genocide committing, CIA-despising, card-carrying operative in the international communist Jewish politica operative branch of the Welders of Zion, I can tell you that I think that revealing the name of an NOC involved in chasing down proliferaters and illicit NBC arms merchants is really, really, really uncool to the max, dude.

Cecil Turner

"That should worry everyone - getting the WMD thing wrong was and remains a huge problem for the Administration, for the Media, for America, for the world, and for the prospects for any meaningful change in the ME."

The WMD errors were almost entirely in the public relations arena, and were mostly due to media misfeasance. It was and remains a huge propaganda loss, but meaningless in terms of threat.

"I can tell you that I think that revealing the name of an NOC involved in chasing down proliferaters and illicit NBC arms merchants is really, really, really uncool to the max, dude."

However, inadvertently revealing the name of an ex-NOC (who may have been more interested in playing politics than doing her job) is ho-hum at best. And at the present state of public knowledge, that's just as valid an interpretation of what actually happened.

RedDan

The WMD errors were almost entirely in the public relations arena, and were mostly due to media misfeasance. It was and remains a huge propaganda loss, but meaningless in terms of threat.

Disagree vehemently, based on the recorded and documented public statements (statements that were in error at best) made by the principals (Pres, VP, SecDef, SecState, NSA, and so on). They saod what they said and media misfeasance (assuming that you are correctly using and interpreting this word, and that you do not mean malfeasance, yes?) had nothing to do with what they did, in fact, say. There are many, many, many lists of direct quotations that back up my contention.

However, inadvertently revealing the name of an ex-NOC (who may have been more interested in playing politics than doing her job) is ho-hum at best. And at the present state of public knowledge, that's just as valid an interpretation of what actually happened.

In that case, the CIA would not have pressed for an investigation and the DOJ would not have complied.

Cecil Turner

"They saod what they said and media misfeasance (assuming that you are correctly using and interpreting this word, and that you do not mean malfeasance, yes?) had nothing to do with what they did, in fact, say."

The Administration was wrong about stockpiles (and some minor ancillary points), but stockpiles were never important, except as an indicator that Saddam was cheating. And Saddam was cheating. It's a sideshow.

"In that case, the CIA would not have pressed for an investigation and the DOJ would not have complied."

No. You're making the same error Beldar pointed out in Toensing/Sanford's (and my) argument, but in the opposite direction. The reason for an investigation is because it's an unknown. The CIA referral indicates a law may have been broken, not that it was.

RedDan

The administration was wrong about Anthrax, Sarin, VX stockpiles, about aluminum tubes, about Uranium deals from Niger or any other African Nation, about mobile weapons labs, about active or planned H- or A-bomb programs, about aerial drones, about delivery systems. None of it panned out. None. And a lot of that was known at the time.

Hussein Kamel is worth a google.

The only person of any note who got it right was Scott Ritter.

Re: Plame case, I will simply quote Beldar: I also agree that it's fair to presume — at least at this point — that the CIA has provided DoJ (and the Special Counsel) with sufficient information about Plame's position and its sensitivity to at least justify the Special Counsel in making further inquiries and putting the subject before the grand jury.

If it were not serious, they would not have done so.

Cecil Turner

"The administration was wrong about Anthrax, Sarin, VX stockpiles, about aluminum tubes, about Uranium deals from Niger or any other African Nation, about mobile weapons labs, about active or planned H- or A-bomb programs, about aerial drones, about delivery systems. None of it panned out. None. And a lot of that was known at the time."

What if we'd found thousands of binary nerve gas artillery shells, SCUD missiles fitted with chemical warheads, and a large centrifuge installation? Would that have convinced the naysayers that Saddam's WMD arsenal was a threat? I contend it would. But none of that would have made any practical difference to our national security, as he had no possible means of delivering it to the US.

What we in fact were (and are) worried about is a terrorist attack involving WMDs. The President stated it succintly in the SOTU:

"Imagine those 19 hijackers with other weapons and other plans -- this time armed by Saddam Hussein. It would take one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known."
And for a variety of reasons, there are only two likely scenarios for a terrorist WMD attack: 1) an attack on US cities using smuggled biological agents; 2) a nuclear device placed in a shipping container and detonated on arrival in a US port. The required amount of bio agent for the first can be carried in one suitcase . . . and the second is not yet feasible. What we were worried about was an intelligence service providing one suitcase of bio agent to the next Mohammed Atta. Could Saddam's secret labs have provided that? Yes. Check the Duelfer report. He probably retained the capability and destroyed it in the days leading up to the war. And even if he didn't have it in February 2003, in the absence of an invasion he would've in a few months. The only assurance we had that he wouldn't was the Gulf War cease-fire (and various UN resolutions culminating in 1441) . . . and he wasn't abiding by it.

Despite several clear statements by the Administration, and a reasonably informative presentation by Colin Powell at the UN, the US (and World) public was looking for a bunch of pointy things with fins, filled with noxious substances. That was never the point, and any reasonably well-informed observer should have been able to figure it out. The Administration certainly deserves some criticism for being obscure about the real threat, and spending entirely too much time on non-threats (including the parts of Powell's presentation that focused on stockpiles, missiles, tubes, etc.). But the media bears a significant share of the blame as well, as their performance was abysmal. Not by being too credible for Chalabi's claims (which were largely window-dressing in any event) but by actively obstructing the Administration message, and failing to provide a suitable substitute.

And though I'm interested in this subject, it's well past my bedtime, and I'm starting to fade. Sorry, but I'll have to check back in the morning. G'night.

TM

In that case, the CIA would not have pressed for an investigation and the DOJ would not have complied.

Well, maybe. There was also the view that within the CIA was an anti-Bush faction (see - any number of damaging leaks) - maybe they just pushed hard for this investigation to go forward.

That does not mean that she was not a NOC, or, arguably, not covered by this statute. It just means that I think there were folks within the CIA who may have preferred to overstate her importance.

Cecil Turner

"It just means that I think there were folks within the CIA who may have preferred to overstate her importance."

I'm not sure we even have to go that far. The IIPA is very narrowly drawn, but there's still some questions of fact that would have to be determined, and whether they met the intent of the statute.

For example, on the overseas assignment requirement, Toensing and Sanford claim:

"This requirement does not mean jetting to Berlin or Taipei for a week's work. It means permanent assignment in a foreign country."
Are they right, and is that what the IIPA means by "served outside the United States"? I don't know, but even if they're right, and Plame only had short trips in the previous five years, should the CIA counsel's office not have forwarded the referral? I submit they should have anyway, and let the investigators, or if necessary a court, answer that question.

A similar consideration applies to the question of whether or not she was "covert." What if, as some have claimed, she was in the process of transitioning to a desk job? Does she stop being covert on the day the decision is taken? Or when the government "publicly acknowledged or revealed the intelligence relationship"? Again, in a borderline case, I think the referral would have (and should have) been forwarded.

But the biggest reason the CIA referral isn't evidence of a crime is that the statute requires intent. The leaker has to "knowingly" and "intentionally" out the agent. The mere existence of the INR memo calls that into serious question, and it's not something the CIA could be expected to know.

narciso

Hussein Kamal, the man Eason Jordan, had advance warning
not suspicion of his impending assassination by Uday's
henchmen; where did the weapons go; were they
destroyed; shipped to Syria; where's the proof

TM

From TM:

"It just means that I think there were folks within the CIA who may have preferred to overstate her importance."

From Mr. Turner: I'm not sure we even have to go that far.

I agree - I am just scouting a forward position here. The notion that the CIA referral proves there was a crime just fails for so many reasons, as you have noted.

All the CIA can be sure of is that there was a leak, and that their agent was (arguably) covert under the statute. They are in no position to determine whether the other elements of the statute have been satisfied, nor should they attempt to - that is why it is called a "referral", rather then, for example, an "indictment", a "conviction", or a "sentence".

creepy dude

To the tune of Speedracer:

Here he comes, here comes Fitzpatrick
He's a demon, no deals
He's a demon and he's gonna be chasing after someone
He's gaining on you, Rove, you better look alive
He's busy revving up your chance to plead Amendment 5!
And when the rightwing is against him and there's traitorous SAO's to screw
You bet your life Fitzpatrick will see it through

Go Fitzpatrick
Go Fitzpatrick
Go Fitzpatrick, go!

He's off,they're lying, just to train their guns upon Iraq
He's jamming Miller and the witch ain't never coming back
Indictments waiting just ahead!

Go Fitzpatrick
Go Fitzpatrick
Go Fitzpatrick, go!

TM

OK, pretty funny, Irish. If you take requests, "Send in the Clowns" might be appropriate.

Cecil Turner

". . . that is why it is called a "referral", rather than, for example, an "indictment", a "conviction", or a "sentence"."

Nicely put.

"'Send in the Clowns' might be appropriate."

How about the SuperChicken theme song? There's gotta be something we could do with: "you knew the job was dangerous when you took it, [buck][buck][buck][buck]."

creepy dude

Good suggestion TM:

Imagine Bush and Rove late one night, when the President starts crooning:

Ain't this a bitch, the end of our pair
Fitzpatrick at last takes you down - and you still have no hair
I'm really a clown.

The leak was a crime, yet you approved
Now Fitzpatrick keeps tearing around - and the poll numbers move
But where are the WMDs? - I'm really a clown.

Just when I stopped inventing reasons
Finally finding the one that I wanted - Nigeria!
Joe Wilson makes an entrance in Vanity Fair
I was so sure of my SOTU lines - but truth wasn't there

My administration's a farce; my fault I fear
I thought Chalabi and flowers and parades- sorry my dear
But where are the WMDs -I'm really a clown.
No yellowcake here

Taxbreaks for the rich, isn't Jeff Gannon queer
Losing my softball reporter this late in my career
But where are the WMDs? - I'm really a clown.
Well maybe next year

I'm in town all week

TM

I may never comment here again - that is really good, Irish. I may have to vote that up to a bit more prominence.

Well, from the sublime back to the ridiculous - background on the two cases involving Fitzgerald and Miller - Islamic Charities, and Plame

http://www.rcfp.org/shields_and_subpoenas.html

creepy dude

Ha. Don't encourage me. Since this thread is somewhat dead, let's let Fitzpatrick sing one.

Here's my main man to the Chairman's "It had to be You."

Why do I indict just for things that you say
Why must I just try to put you away
Why do Repubs sigh, why don't I try - to forget

It must have been, that something judges call crime
Kept me saying: "who in the White House is slime?"
I questioned them all, nobody would fall - 'til it was your time

It had to be you, it had to be you
I sniffed all around, and finally found - the somebody who
told Novak a secret so true, just to Wilson screw,
makes DailyKos glad, makes Minuteman sad - while I'm busting you

Some others Repubs I've seen, to the poor they act mean
Might burn a cross, give taxbreaks to the boss
But they wouldn't do
For nobody else, gave me a thrill - with all your virtues, I'll bust your ass still
It had to be you, traitorous you
Karl Rove-It had to be you

livingston

Beldar's comments about the "known knowns, known unknowns and unknown unknowns" caused me to wonder about the efforts of some career civil servants in the CIA, FBI, State Dept., etc who have been working AGAINST the Bush administration. What is known about their efforts re the Plame case?

Cecil Turner

"What is known about their efforts re the Plame case?"

Check out the lady behind the Foster Grants . . . but try proving it.

The punishment fits the crime, though. They got a new boss they don't like, and many were fired/resigned. Deservedly so.

Neo

Putting aside the number of shades of "Left" and which shade colours the news at the NYT, I think a quick visit to section 421 is in order.
Unless there is some classified document floating about identifying Palme as a CIA operative, sections (a) and (b) are pretty moot. On the other hand, "pattern of activities intended to identify and expose" sounds a lot like journalism to me. Likewise, "with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States" would sound to any administration staffer (of either party) as the every day activities of the press.
That said, none of this appears to really touch Robert Novak, but perhaps could cause difficulty for whomever talked to him about Palme. And there is the real rub, Novak walks, but "press privilege" is damaged. NYT sees this as a lose-lose, so let's get down to pushing it under the rug. Interesting that the first major investigation of the "Post Special Prosecutor Era" is causing the most damage to the press. I'm sure there are former administration officials that just can't keep from smiling when thinking of this outcome.

The bottom line on the Palme investigation is the old adage .. careful what you wish for cause you might get it.

Kim

I've thought for a while that Judith Miller may be protecting Valerie Plame, or someone near her. It seems clear that Joe Wilson had unauthorized access to classified information.
================================================================

Kim

This has been noted before but no one seems to be paying much attention to it. Novak's article contained two sentences that seem to me to have been conflated. In the first he says that Plame is a CIA agent. In the second he says that administration sources told him she was Joe Wilson's wife. He does NOT say that an administration source told him she was CIA, but that seems to be what everyone has run with.
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