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February 10, 2006

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jerry

The Vice President can't declassify anything, even if he is Cheney.

TM

I looked that up once; let me see if I can find it.

Anonymous Liberal

Tom,

I think the problem is that "covert" is a statutory term, not a classification the CIA uses for its agents. Plame was a NOC and her affiliation with the CIA was classified. But that alone does not mean she was "covert" within the meaning of the IIPA. Only a judge can determine that. If Libby were charged with an IIPA violation, the issue of whether Plame was "covert" would undoubtedly be litigated. The judge would have to determine, after extensive briefing by both sides, whether the activities Plame engaged in the last five years and the attempts made to conceal her identity by the CIA were sufficient to make her "covert" within the meaning of the statute. This is kind of like determing whether "probable cause" exists. The police and prosecutors may think it does, but you don't really know until the judge makes the call.

I suspect that is why Fitzgerald has remained silent on this. He thinks he has an argument that she was "covert" but, because there is almost no case law on point, he can't be 100% sure his argument would prevail. As for why no one has leaked this information, it's because no one knows. It's a close question of law that has not yet been litigated (and may never be).

emptywheel

TM

I'd go further, if I were you, and question whether Waas broke anything new yesterday (though he definitely confirmed it will corrborating sources). I noticed that NIE paragraph and put two and two together on who Libby's likely superiors were:

First, we learn from this that the intent of the July 8 conversation--the one where Judy had to come to DC for breakfast at the St. Regis? Well, the stated reason for that meeting was so Libby could leak the classified contents of the NIE to Judy. Now, apparently Libby "was authorized to dislcose information about the NIE to the press by his superiors." (6) Hmm. Libby is the Chief of Staff to the VP. Who are his superiors. Hold on, I know!! Dick Cheney! George Bush! Both telling Libby to go peddle classified information to journalists. Nice crowd, this Bush White House.

ReddHedd noted it too and said this:

Libby disclosed information regarding the National Intelligence Estimate (NIE), and was authorized to do so by his superiors, according to Libby's own testimony to the Grand Jury. Fitz goes on to say that the NIE information was a basis for his discussion with Judy Miller on July 8, and that it is "inextricably intertwined with the narrative of events of Spring 2003," as Libby's testimony makes plain. Well, isn't that juicy?
larwyn

Missing $1,000,000.00 FOUND!

Upon investigation it has been confirmed that the owner of the account withdrew the million $$$.

It was a data entry error only.
The million dollars was never actually missing.

TM

Well. Here is the relevant Executive Order from Bill Clinton, and we do note, it is an Exec Order, not a law.

This is close to the point (Sect. 3):

PART 3 DECLASSIFICATION AND DOWNGRADING

Sec. 3.2. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.

(b) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

So Tenet would have clear authority to declassify parts of the NIE, yes? But does Tenet take orders from Bush and Cheney?

I pretty seriously doubt Bill Clinton issued an Executive Order that made it impossible for himself and future Presidents to declassify things.

So the question is, can Cheney do it "on his own authority", can he "request" Tenet to do it with the subtle hint that what will come next is a phone call straight from the top, or can he get Bush to declassify it?

And does it really matter? Unless Bush and Tenet want to ax Cheney, they will back him anyway.

clarice

Again, I remind you that Waas' story is made up of whole cloth. Another Waas Nicht, as it were.Here is the statement issued today:
Statement from Bill Jeffress, Attorney for Mr. Libby

There is no truth at all to the story that Mr. Libby's lawyers have advised the Court or the Special Counsel that he will raise a defense based on authorization by superiors. Indeed, there has never been any conference call between Mr. Libby's defense lawyers and Judge Walton. We do not know who reporters are relying on as sources for this story, but any such persons are neither knowledgeable nor authorized to speak for Mr. Libby's defense team.


Lew Clark

Technically, the only way a document may be declassified is for the government entity that classified it in the first place to declassify it. This makes sense, in that only those with the expertise in a particular area to make the original determination to classify it, would have the expertise to determine the impact of declassifying it. You can't have the State Department deciding to declassify a DoD document, or vice versa.

But, in practice, if the President, or the Vice President (under delegated authority from the President) requests the classifying agency to declassify something, they will declassify it. They may make a strong argument why it should not be declassified, but they will declassify it. It is not a good career move to say, "With all due respect, screw you, Mr. President!"

topsecretk9

Larwyn

Good catch!

Rick Ballard

Tom,

topsecretk9

We do not know who reporters are relying on as sources for this story, but any such persons are neither knowledgeable nor authorized to speak for Mr. Libby's defense team.

Good question, who are your sources Meezter Waas?

emptywheel

Clarice

Do you have a link for that?

clarice

Contact Barbara Comstock's (Libby's press contact)office..They released it. If you have difficulty reaching her, email me your addy, and I'll ask her to send it to you.

TM

I'd go further, if I were you, and question whether Waas broke anything new yesterday (though he definitely confirmed it will corrborating sources).

I appreciate the reminder - I gave the article a pass yesterday because it was deja vu all over again. There were only three sites that might have had that, (this not being one of them), but my time management has been dismal.

But I'm on the comeback trail!

clarice

emptywheel. Here is her contact information:
http://www.blankromegovernmentrelations.com/offices/washington.html

emptywheel

Thanks clarice

I just reread the Waas story. Waas makes neither a mention of a meeting between defense and Walton, nor does he say Libby's lawyers have advised Fitzgerald of this.

Jeffress' response must be directed at a different article.

skinnydog

Well was Libby authorized to reveal actual classified information or simply discuss things in the NIA which is itself classified? For example, the NIA says that our best intellignece estimate is that Iraq will have nuclear weapons in X years. Would it be true that Libby could not tell a reporter of that assessment? Or is it that he could say it but not source it directly to the NIA or that he could say it but not provide details about that assessment.

I would expect that even though the NIA was classified that on some level it could be discussed. I mean the charge is out in all the papers based on leaks that Bush and Cheney exagerated/lied about the intelligence and are we to believe that they could not respond by saying no the intelligence in fact supported our statements.

Wonderland

A couple things:

With respect to Tom's point: "Let's note that there might be some haze around the phrase "direct evidence" - if, for example, Cheney testified that he told Libby that Ms. Plame was covert, but nothing to that effect shows up in Libby's notes or subsequent conversations, does Fitzgerald have "direct evidence" of Libby's knowledge, or not?" --

There is almost never direct evidence of knowledge or belief. State of mind is always the hardest thing to prove in court. "Direct evidence" in this case would likely be exactly what Tom speculates it would be: an affirmative, unequivocal statement by Libby that he knew she was covert, or notes in his own handwriting like "Plame --> covert CIA op" -- neither of which Fitz likely has.

Additionally, the "denial" by Libby's defense team only pertains to whether Libby will raise a defense based on orders from his superiors, and specifically does not deny that he previously testified that he received such orders from his superiors. The court filings, plus this non-denial denial, make it pretty clear that Cheney did tell Libby to release some classified info to rebut Wilson et al.'s charges (what info, exactly, is unclear).

clarice

emptywheel, Waas makes repeated assertions that his sources are familiar with Libby's defense plans and that could only be true if someone on the team had told him or the information was related to Judge Walton. Here's one of many example:

Beyond what was stated in the court paper, say people with firsthand knowledge of the matter, Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration's use of prewar intelligence in making the case for war.

clarice

Closing the italics door

clarice

i>test

Appalled Moderate

My last contribution to the Plame threads

Trained Auditor

Waas may be making stuff up, but Libby's lawyers' non-denial denial is too cute by half:

"There is no truth at all to the story that Mr. Libby's lawyers have advised the Court or the Special Counsel that he will raise a defense based on authorization by superiors. Indeed, there has never been any conference call between Mr. Libby's defense lawyers and Judge Walton." [emphasis added]

The purported news is that any disclosure of information by Libby was authorized (and thus was no crime, nor a material basis for pursuing charges arising from investigation of the non-crime) - - not that any such authorization will be a defense or was discussed with the judge.

Some lawyers...they think everyone else is dumb or something. I had hoped Libby's lawyers were smarter than this...

Jeff

Who said anything about conference calls? And look closely at what Jeffress does and does not actually deny. It's weird.

Florence Schmieg

Did Judy Miller have clearance for some classified information in her capacity as a reporter on the WMD beat? I am pretty sure that was discussed in some news reports around the time of her testimony to Fitzgerald.

Sue

And look closely at what Jeff does and does not actually deny. It's weird.

You could have written that sentence about yourself, so I did it for you. You complain about neo-cons, righties, whatever the term is of the day, parsing words. Yet, we find you enjoy the same pastime. Weird, indeed.

maryrose

AM You have been a worthy adversary.

clarice

Florence, In his report of her testimony, I recall her saying that while she was embedded in Iraq she had a limited DoD clearance to receive classified information.

topsecretk9

---Did Judy Miller have clearance for some classified information in her capacity as a reporter on the WMD beat?---

It did make everyone mad at the time, there is clarification in two editor&publisher articles (need subscription and I couldn't find freebies)

topsecretk9

Short answer, I *think* she did.

nittypig

Is it just me or does this leak look like a tactical position. Smells like Fitz is using it to try to convince Libby to flip, or Libby is using it to suggest to Fitz that he might flip.

I can't imagine there is much of a case there, or why this leak should come out now, but it seems tactical.

topsecretk9

Nitty
I don't think this was a leak, but a very artfully wording of old and available info in such a way that makes it appear new and breathless (ie - spin and/or paycheck fodder)

cathyf
Well. Here is the relevant Executive Order from Bill Clinton...
That's not the latest one. Executive order 12958 is the latest one, it was March 25, 2003, and one of the few changes from previous orders is that now the vice president is a designated de-classifyer.

jerry is simply wrong.

cathy :-)

larwyn

Same War, different battlefront:

Clintonistas going after Weldon's seat to stop ABLE
DANGER's truths about the
Clinton's Admin getting out


From AbleDangerBlog today:
snip

....Bryan Lentz, 41, a Swarthmore attorney who volunteered for combat in Iraq, agreed to pull out of the race for the seat of U.S. Rep. Curt Weldon, and run instead for the state House, against Thomas P. Gannon, a 28-year Republican veteran.

Joseph A. Sestak Jr., 54, a recently retired Navy vice admiral who worked in the National Security Council in the Clinton administration, has the inside track to take on Weldon in November.

Paul Scoles, who ran against Weldon in 2004, also quit the race this week and endorsed Sestak. Anyone who has been involved in local politics knows getting two candidates to drop out in one week almost never happens. Someone is worried where this Able Danger story is headed.

A commenter suggests contributing to Curt Weldon's campaign -if you want the Able Danger story to come out. If Weldon loses in November - chances are it will be dropped.

I agree with that.
Rep Curt Weldon
Click here: Able Danger Blog
AbleDangerBlog

That the CLINTONISTAS are beside themselves to
stop the Able Danger story is no surprise.
Nancy Soderberg showed up on Tucker Carlson last night
after long hiatus from cameras after her stunning remark
to Jon Stewart during her book tour.

When Stewart remarked that after the success of the 1st
election in Iraq - "What if Bush is right! My world view (paraphase) would be shattered"
Soderberg responded" We still have Iran and North Korea".

Last night Soderberg told us that Clinton had done a
better job on terrorism than Bush is doing!!!!

So they are sending in the low level troops and Albright's
buddy Wendy also showed up again after long hiatus, on
either CNN or MSNBC.

Their A list is busy with convincing Americans that
the NSA & CIA jails/renditions leaks were by "whistleblowers" and that Plame was covert and that
Bush lied about WMD.

Hope many will support Curt Weldon - we need him
in Congress.

Jeff

Sue - What in the hell are you talking about?

Sue

Jeff,

I think I was fairly clear in saying you like to parse words also. Surprised me since you scold us for looking for the hidden meanings...the double talk...the non-denial, denials, in...oh...let's just use Russert's statements as an example.

Rick Ballard

Are you writing of EO 13292, Cathy? It has the right date and did amend Clinton's EO in the manner you describe.

A list of pertinent EOs can be found here.

Jeff

Sue - What? I may contest your particular interpretation of some statement by someone involved, but that is very different from complaining or scolding or whatever about paying close attention to what they say, or criticizing the general practice of being alert to non-denial denials and so on. I defy you to find anywhere that I have made such a general complaint. Similarly, I defy you to find one place where I have scolded y'all for looking for non-denial denials, doubletalk, hidden meanings in the words of Russert in particular. On the contrary, I have commented here on more than one occasion that Russert should absolutely make a clear and unambiguous statement about what he knew about Plame when and what he told Libby, in contrast to the misleading shiftiness of NBC News' infamous statement about his testimony. (I'm not going to go find the links to all my comments, but they're there.) Likewise, I have said that Kristof should come clean on what he knew about Plame when. I'd say instead that I've gotten little or even no support from rightie commenters here in my effort to get Cliff May to come clean on what he knew when about Plame and what his role in the investigation has been. TM has been supportive, though he has yet to renew his call after Dickerson did the honorable thing and went into considerable detail on his own role.

I do like to parse words, because many of the leading figures in the case are clearly good at being misleading. I have simply never scolded or even complained about you or anyone else doing so; but of course that doesn't mean I have to think every cockamamie interpretation you come up with is right.

Barney Frank

Jeff,

At least one of the news stories claimed yesterday that there had been a conference call between the prosecutor, the judge and Libby's bunch. I looked for the story but couldn't find it.
But I'm sure Libby's lawyer is not referring to nothing when he denies the call occurred.

Dumbledore

Not to let pesky details get in the way, but regardless of whether Libby was authorized to release details on the soon-to-be-declassified version of the NIE to Miller on July 8th, Miller's account of her testimony tends to indicate that (at least according to her notes) he generally declined to actually do so.

(It may be worth noting that an unclassified version of the NIE had already been released in October 2002)

In any case, according to Miller's account of her testimony (regarding the July 8th meeting):

"An unclassified version of that estimate had been made public before my interviews with Mr. Libby. I told Mr. Fitzgerald that I had pressed Mr. Libby to discuss additional information that was in the more detailed, classified version of the estimate. I said I had told Mr. Libby that if The Times was going to do an article, the newspaper needed more than a recap of the administration's weapons arguments. According to my interview notes, though, it appears that Mr. Libby said little more than that the assessments of the classified estimate were even stronger than those in the unclassified version."

Jeff

Dumbledore - A couple of considerations: 1. Libby had to be very careful with the classified NIE, since it contained some information undermining his claim to Miller that the assessments of the classified estimate were even stronger than those in the unclassified version. 2. Miller may have thought she was protecting Libby by downplaying the extent to which he revealed classified information, and Cheney's role in approving Libby's talk with her (which we know Fitzgerald asked her about), when in fact playing them up would have provided corroboration of Libby's testimony. 3. It's true that Fitzgerald's affidavit doesn't specify whether the NIE info was classified, but would Libby need authorization to leak unclassified information to Miller? And would Fitzgerald have any reason to include such information in a paragraph addressing Rule 404(b) information?

skinnydog

Jeff, so in effect your argument is that Miller perjured herself in front of the GJ by lying about the level classified information Libby passed on to her?

Sue

Are you guys saying Fitzgerald is/was investigating the leaking of NIE information, not the leaking of a covert operative? I personally don't think Fitz is investigating anything that doesn't support the push back of a whistleblower. A distinction I think needs to be revisited by Mr. Fitz.

JJ

Waas sources are:

"according to attorneys familiar with the matter, and to court records."

How did he get all the way to the North defense from anonymous lawyers as sources and court correspondence? Seems a monster truck rally kind of leap?

maryrose

I personally would like to know if Fitz investigation is ongoing ,{his grand jury met this week} when he's going to give Karl Rove the all clear. Obviously he isn't getting anything else out of Libby and I haven't heard of any important or notable people being brought before the grand jury. We have a timetable for Libby but what about the rest of his case? How long can he wait for that next dog to bark? This is over 2 years now and costing a fortune.

clarice

Exactly. The only court record is the affidavit. And if he thinks it says what he reported, he needs remedial reading lessons.
And the only lawyers who'd know--in the absence of any discussion with Fitz and the Judge which Libby denied, what lawyers?

What the affidavit refers to is not the dissemination of classified information to Miller, but rather what he could discuss with her and that he felt that more important a part of the briefing than anything they said about Plame which escaped his recollection.

maryrose

Joe digenova says any i info Libby shared ok if he got permission from Cheney or superiors, also Ok. Moveon.org new add compares Nixon and Bush saying President Bush doing iilegal things, Nixon really a stretch on their part.

JM Hanes

TM -

I temporarily resuscitated my long defunct blog to respond to this item without burdening your bandwidth and my fellow commenters. For what it's worth, a slightly different take on the value of anonymous sourcing.

topsecretk9

Well, hereare about 10 lessons for Fitz! 1- This how a "meme" starts, so you see? The meme isn't necessarily true. 2-And the meme starters are the backbone of your case, so you see? Not necessarily a wise call.

danking70

Well done, JM Hanes.

What will I be satisfied with? Hard to say but I'd start with these:

Evidence of Plame's status at the CIA.

Novak & Woodruff's source/s

Defense questions to Mitchell, Kristoff, Pincus, Woodruff, Wilson, Plame, Novak and Woodruff's source.

topsecretk9

and oh SHOCK, guess whose the first to come out with a editorial? Corn's Nation "Dick Cheney is not above the law"...does the Nation know the law? This is pathological.

topsecretk9

whose=who's

topsecretk9

who has? ...stopping now

Lew Clark

"Yellow journalism" has always been around. It has affected political races and I never did like that. People should be elected or rejected on the truth, not what the loudest yeller hiding behind first amendment rights can make up. But now, have we turned an even darker corner? Can people be imprisoned based on the best "made up" story printed, supported by anonymous sources?

Dumbledore

Jeff, you're right that Fitzgerald's affidavit mentions the NEI information in a context that would logically imply that it is referring to classified information from the NEI. (Or, at least, information from the classified NEI, which is not exactly the same thing). But that doesn't necessarily mean that the implication is warranted.

It'd be ironic if Libby needlessly entangled the subject of releasing classified information to Miller in his own testimony.

But it does seem like one of two things must be true:

1) Libby did not explicitly testify to having disclosed classified information to Miller (nor Miller to having received it).

2) Fitzgerald concluded that Libby had (or believed he had) proper authoriziation to disclose such information.

Since Libby can only have been provided proper authoriziation by someone who had the authority to declassify the material (and who was effectively doing so in authorizing its release), neither of these two scenarios seems particularly pernicious.

Well, I suppose a third option would be that Fitz just thought _six_ indictments would just be too darn many...


larwyn

JM - Terrific post.

"I temporarily resuscitated my long defunct blog to respond to this item"

Don't you know what is said about
keeping your talent under a bushel?

maryrose

Larwyn;
Come over the Friday on Ice thread and help us write our story.

maryrose

JMHanes;
Excellent post with some very thought provoking ideas and observations!

JM Hanes

Thanks for commenting. I only wish I could write fast enough (or maybe think fast enough!) to keep up the pace set by folks like Tom. My admiration for those who can went up exponentially after I tried it myself. Posting your own material, keeping it fresh & interesting on a daily basis represents a quantum leap from commenting on other people's topics, as here, which is easy (or hard) enough. I really don't know how Tom does it, and keeps on doing it.

Science should probably set aside a special niche for blogger-brains. They seem to have a special talent for finding, reading, absorbing, sorting, prioritizing, & connecting incredible amounts of information -- and then writing about it, which is another talent in its own right.

KM
Well. Here is the relevant Executive Order from Bill Clinton... That's not the latest one. Executive order 12958 is the latest one, it was March 25, 2003, and one of the few changes from previous orders is that now the vice president is a designated de-classifyer. jerry is simply wrong.

cathy :-)


Read again. A designated classifier.

JJ

Before this Waas story slides off the map, I want to speculate on one indication as a result of it:

That the Plame Thing may have turned a significant corner with the media and blue bloggers.

Ergo, a dozen blue blogs hollered "AH HA LOOK" immediately after the story appeared. With little analysis, just a hollering point. Then the MSM did the Me-Too, as per JOM.

Then, take into account that Emptywheel got the same material one week earlier – and in better detail despite, as Emptywheel notes at the end of the post, without much "logic or grammar" in his document-dumping post.

So, this "AH HA LOOK" lag is now an indication that many on the left have lost the thread (no puns) of the Plame story.

But a bigger and better conclusion may be that any reporting done FROM NOW ON by the media that attempts to whack the White House on Plame without any qualifiers is simple advocacy journalism.

If you're going to hype the story without any expert context – and expert context of depth and not of length -- you are going to show either that you are leaning heavily politically or that you're...clowning around?

ed

JJ, on e of Libby's lawyers worked for North. That's not much of a stretch!

clarice

If you look at the Fitz presser, he says there is nothing wrong with the officials exchanging this information and he wasn't charging Cheney with wrongdoing--this after knowing what Libby testified to. Could the Waas article be stupider? Well, the Quail hunt kerfuffle shows there is even stupider press nonsense, doesn't it?

KM

Uh, right. Let's compare direct and indirect objects.

Patrick Fitzgerald, 28 Oct. 2005:

"Let me make clear there was nothing wrong with government officials discussing Valerie Wilson or Mr. Wilson or his wife and imparting the information to Mr. Libby."

Murray Waas, 9 Feb. 2006:

"Libby specifically claimed that in one instance he had been authorized to divulge portions of a then-still highly classified National Intelligence Estimate regarding Saddam Hussein's purported efforts to develop nuclear weapons....

... Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration's use of prewar intelligence in making the case for war."

And is it really necessary to point out that Fitzgerald said he wasn't making allegations about, and indeed wouldn't talk about, anyone not charged in the indictment?

Clearly a stupid man, that Murray Waas.

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Wilson/Plame