Architects sometimes refer to "negative space" as important in creating a desired effect - an area devoid of architectural details can enhance a larger effect.
Or amongst fans of detective fiction, there is the famous incident of the non-barking dog in the night-time - it was what did *not* happen that was important.
Today there is good blogospheric buzz about a new filing (39 page .pdf) by Special Counsel Fitzgerald in the Plame investigation. There is an overheated reaction to the news of President Bush's involvement, but for our current purposes it is what Fitzgerald does not say that is interesting.
Our quick reaction is this:
(a) Some of the responses to the Bush Connection are over-done - Fitzgerald does not come close to alleging wrong-doing by President Bush. However, he does explicitly state the opposite regarding Libby's leaks on p. 27 of the .pdf:
During this time, while the President was unaware of the role that the Vice President’s Chief of Staff and National Security Adviser [i.e., Libby, who had both jobs] had in fact played in disclosing Ms. Wilson’s CIA employment, defendant implored White House officials to have a public statement issued exonerating him.
(b) There are fascinating new bits about Cheney's involvement, although the negative spaces are also fascinating. The filing buttresses the notion advanced by Chris Matthews and many others that Fitzgerald's real target was Dick Cheney. One might infer that the indictment of Libby was simply an attempt to elicit his cooperation, and that, so far at least, it is is a flip that failed.
(c) The Libby defense has made much of the possibility that the disclosure of Ms. Plame's CIA status did not actually harm national security, and that her covert status was not widely known within the White House. Their point is that, absent this information, Libby had no obvious reason to lie when talking to the FBI or the grand jury. Fitzgerald attempts to address this by explaining that Libby wanted to spare the White House political embarrassment, and that he feared for his job. However, Fitzgerald seems to have misunderstood or mis-stated the public record in this regard. From the filing:
Thus, as defendant approached his first FBI interview he knew that the White House had publicly staked its credibility on there being no White House involvement in the leaking of information about Ms. Wilson and that, at defendant’s specific request through the Vice President, the White House had publicly proclaimed that defendant was “not involved in this.” The President had vowed to fire anyone involved in leaking classified information. [Emp. added.]
And if there is a leak out of my administration, I want to know who it is. And if the person has violated law, the person will be taken care of.
If somebody did leak classified information, I'd like to know it, and we'll take the appropriate action.
People who broke the law were to be fired; folks who leaked classified info were to be treated appropriately.
That actually might explain the motivation behind Libby's story about the NIE.
It also seems clear that Fitzgerald is holding few cards on the question of her status - this filing would have been a lovely opportunity for him to present any evidence at all that the White House , specifically Messrs. Cheney or Libby, had been warned about Ms. Plame's status.
(d) Fitzgerald has repeatedly told the judge that his investigation is ongoing. In the latest filing, he provides a strong hint that Rove (no surprise) and Hadley are still in trouble - per the filing, Rove and Hadley are not currently expected to be called by the government as witnesses. Given their roles in the indictment that seems odd, unless they are still under the gun.
Let's cover these with a bit more detail. The filing is in response to a defense motion for discovery, and Fitzgerald is explaining why he does not need to surrender certain documents. Here is the passage on Bush that prompted such excitement:
"Defendant testified that he was specifically authorized in advance of the meeting to disclose the key judgments of the classified NIE to Miller on that occasion because it was thought that the NIE was 'pretty definitive' against what Ambassador Wilson had said and that the vice president thought that it was 'very important' for the key judgments of the NIE to come out," Mr. Fitzgerald wrote.
Mr. Libby is said to have testified that "at first" he rebuffed Mr. Cheney's suggestion to release the information because the estimate was classified. However, according to the vice presidential aide, Mr. Cheney subsequently said he got permission for the release directly from Mr. Bush. "Defendant testified that the vice president later advised him that the president had authorized defendant to disclose the relevant portions of the NIE," the prosecution filing said.
Nothing illegal or untoward is alleged. Fitzgerald did talk to Bush and Cheney together, and if he had a different story from them, this would have been the time to note it. [This post covered the executive orders on declassification, and yes, of course the President can declassify things.]
That said, Libby's story is quite odd. Apparently, Cheney talked to Bush and got the secret declassification for Libby's July 8 meeting with Judy Miller. On a parallel track, Stephen Hadley and others were working to get portions of the NIE declassified, which happened on July 18. Yet Libby never told Hadley that the NIE had already been declassified, not even with a wink or a "Mission Accomplished". One can imagine that this story did not sit well with Fitzgerald.
(Sorry, bloggus interruptus - duty calls. On point (b), Cheney's involvement, some highlights are in this earlier post under "GET DICK!"
I will let points (c) and (d) stand alone for now.)
MORE: On point (c), Libby's motivation to lie: the defense position is that Libby had no reason to lie since he was not aware that Ms. Plame was covert, and, in any case, there has been damage assessment released showing that national security was harmed.
Fitzgerald's response, as noted above, is that Libby did not want to embarrass the White House or get himself fired by admitting involvement in the leak.
However - there is a peculiar discrepancy in the testimony of Matt Cooper and Lewis Libby. Per Libby's grand jury testimony, it was Libby who told Cooper that Joe Wilson's wife was with the CIA.
But Matt Cooper testified that it was he who disclosed the Plame tidbit to Libby; Libby responded with something like "I heard that, too".
So Fitzgerald's position is what - that Libby feared to tell "the truth" about his chat with Cooper, to wit, Cooper had disclosed Plame to him? That in order to protect his job and spare the White House, Libby invented the lie that he had leaked to Cooper? How does that make any sense?
Now, Libby's story might fit into a a theory about a conspiracy to protect Rove (who did leak to Matt Cooper). But Fitzgerald notes repeatedly in his filing that Libby is not charged with any conspiracy counts; presumably, he cannot make that argument now and then reverse field and introduce that at trial without annoying the judge.
On the question of Libby's motivation, Fitzgerald's filing misrepresents the President's own words and leaves one baffled by the underlying logic.