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July 21, 2005

Comments

Jim E.

Nice post.

But I still disagree with the "original intent matters!" argument. I'm not sure if you're being sarcastic, but how in the world would the intent of the 'S' matter, unless Rove (or whoever) could prove their own due diligence on the matter before leaking it?

DW West

The "Case Against Rove" and a possible case against Libby are only public knowledge because of Matt Cooper and Rove's lawyer. You are right to point in the direction of Fleischer and Bartlett. Other officials from Cheney's office and Rice's NSC office will also surface as possible leakers. Some of them will have seen the June 10 2002 document, and others will have heard about it from those who did see it. You can bet that everyone in Cheney's office saw it - they had access to everything from State, Defense, the CIA, the NSC, every other department plus their own sources.

Appalled Moderate

If it can be proved Rove received a copy of that memo, he's in deep trouble. The trouble may be political, rather than legal, but it's trouble nonetheless. And, TM, I think a fair reading of Bush's earlier statement is that someone leaking of "classified" information would be fired.

If it can't be proved that he received the memo, then I'm not sure how this scandal continues.

What bugs me in this - why would the Dick Morris equivalent be getting classified info? The political guy really doesn't need to be knowing this stuff. I think the mistake/treason/ what have you was committed by whoever passed the information to Rove in the first place.

Slartibartfast
I think the mistake/treason/ what have you was committed by whoever passed the information to Rove in the first place.

I've been making a case for this possibility for some time now. We won't know for sure until the whole story comes out, methinks, and details are emerging at a snail's pace.

Walter

There is a lot of fuss about Rove and hardly a mention of Libby, Cooper's other source. Maybe it is because Libby's lawyer isn't making statements. But we do know that Libby and Rove were communicating by email about this.

When Bartlett and Flescher were travelling with the President in Africa in July 2003, it seems likely that the effort to discredit Wilson was being directed back in Washington by Cheney's office. It's a good bet that Rove got the gist of the June 10 memo from the OVP.

Lion

As I remember it from my days with Top Secret clearance, the use of unclassified information in a document (or paragraph) that is classified because of other information does not affect the status of the unclassified information in any way. If, in the course of document discussing the secrets of the neutron bomb I mention that K Avenue is a one-way street, all readers of the document are free to discuss K Avenue to their heart's content. The fact that Valerie's involvement in her husband's trip is mentioned in a paragraph designated Secret tells us nothing unless we know what else is in that paragraph.

SamAm

Uh-oh. Is it the "I can't tell the difference between the sensitivity of 'CIA stands for Central Intelligence Agency' and 'Wilson's wife may be a covert operative'" defense? Along with the "I didn't see it or hear of its contents defense before I went to the grand jury, even though I'm the 3rd ranking guy in the White House and even Ari saw it" defense? And the "I heard it from journalists first, but maybe not because I can't remember and it could have been someone I work with" defense?

Rove-a-dope indeed!

Slartibartfast

Maybe you should use smaller words, Lion.

Miller

Rove doesn't come across as the kind of guy who would need to actually read a memo. He would more likely pick up any useful information in a conversation and proceed to use it. Rove is not a lawyer but a political operative. His boss also is not someone who reads a lot, but relies on verbal reports. Rove engages in hundreds of conversations every day and sometimes forgets where he heard things.

Tollhouse

Exactly right Lion. I worked with TS SCI material and the content of that paragraph is what is classified and may not have anything to do with the sentences containing Plame at all. Seems someone is making more assumptions.

The irony here is that someone leaked part of (maybe the whole paragraph?) that paragraph to the Post's reporters and that would be a violation of the law as well.

PS

I don't see how this memo changes anything.

The memo contains the same information that we already know could have been gathered from a variety of sources. The problem is still one of connecting the dots between indviduals, and I see see nothing in this memo story that does anything on that front.

Geek, Esq.

I've been maintaining for a while that the IIPA was the starting but not ending point of this investigation.

My take on the new developments, trying hard as I can to be fair to Rove & Co:

1. It is unclear whether one could infer from this memo that Valerie Wilson was in fact Joseph Wilson's wife. Probably, but not a certainty without seeing the actual text.

2. As an aside, did Plame go by "Valerie Wilson" inside the agency? If not, why use her married her married name in this context--as a smoke signal to send up the totem pole?

3. The memo does not prove that Plame was a covert agent. It just doesn't. That factual determination will be made without reference to this memo.

4. The entire ballgame, with respect to this memo anyways, is INTENT.

5. As this memo doesn't prove that Plame was a covert agent, it follows that it can't prove that anyone reading it knew she was covert.

6. However, this memo arguably put all readers on notice that Plame and her participation in the matter were sensitive subjects that shouldn't be blurted out to the press.

7. That notice is probably not enough, by itself, to nail anyone on the IIPA charges.

8. However, this memo does provide solid support for an Espionage Act indictment and conviction:
http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000793----000-.html


Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

9. Note that the Espionage Act:

a. Covers both people like Scooter Libby (authorized possession) and Rove (unauthorized possession);

b. Addresses potential conspiracies, as a way of getting around a plausible deniability scheme; and

c. Has a much wider scope--anything related to the national defense (Plame's part in the CIA's anti-WMD activities certainly counts;

d. Has a much lower standard for intent--"reason to know"--thus making whatever notice the memo provided much more damaging to the defense.

10. In my opinion, this memo will be most damaging for perjury indictments. Why?

a. As noted above, intent and knowledge were likely to be major hurdles for any prosecution

b. Proving subjective state of mind is not only difficult for the prosecution to prove in cases like this, it is also an extremely easy thing for a defendant to lie about--without mindreaders it's hard to disprove someone when they say what they knew or were thinking at a moment in time

c. I would fully expect that Fitzgerald asked a few folks in the White House very narrow questions designed to elicit their knowledge of Plame's covert status or the sensitivity of the information about her.

d. The WH officials would have two compelling motives to lie and say they had no idea her status was sensitive and the revelation could damage national security:

i. Legally, that would be conceding a major and very hard to prove element of the prosecution's case; and

ii. Politically, it would have been disastrous. Admitting that they leaked information they knew could damage national security, well, that's a big "ouch!"

11. The fact that the material was marked "secret" and involved the names of CIA personnel trying to stop the proliferation of WMD's--something every person reading that memo had to know--would disabuse anyone of the notion that they had no reason to know leaking such information could have national security implications.

Keith

It seems as if Bartlett and Fleischer are the likely targets of the probe at this point. They both were on the trip; they both likely saw the memo; they both participated in the response against Wilson; they are likely the people who leaked it to the media and/or Rove.

Rove would seem to be a secondary figure: he never saw the memo or knew of the "secret" classification, and he heard the information secondhand--either from media or from Bartlett and Fleischer. Maybe that's why his lawyer keeps insisting that he isn't a target--he's just a one link in a chain of classified gossip that originated from someone else, and under the limits of the very specific statute, his involvement isnt' worthy of criminal blame.

overtaxed

It is becoming more clear why the CIA referred the matter to Justice, and why Fitzgerald has taken the investigation this far. Secret information was made public. The investigation is apparently a few months from being wrapped up, so all we can do is pick up tidbits from anyone close to the investigation who will talk, and weigh that meager information against the informed opinions of Minuteman and many of the commentators from this blog.

Tollhouse

The memo supports the narrative that she was a covered person. Most of the info that's been dribbling out has been that she most definitely wasn't but this memo gives a slim reed to hang on for the "she's a covert agent" side, i.e. "She's a covert agent because the paragraph was Secret, and we have some anonymouse quotes from some senior CIA guys that say that covert agent identities are classified (at least ;)) secret."

SamAm

Did they have to know she was covert for the IIPA to apply, or just that the government was taking steps to protect her identity? Because it seems to me that anyone who saw the document and would have to have understood her identity was being protected, at the least (same could go for those who heard details without reading the thing itself). And that itself suggests covert status, even if it mentions her as an analyst. Plus, 7 sentences are not that many. This is sentence 5 of this post, for example.

Tollhouse

Not only was she supposed to be covert, but Rove had to have authorized access to the info for the IIPA to apply.

Lamont

Looking for Rove-friendly leaks? Rove's supporters have a problem because the Grand Jury is meeting in secret. They only know what Rove was asked and what he testified (and maybe the same for other White House staff).

The Rove people won't be able to mount a serious defense until the Special Prosecutor issues a report, or perhaps indictments.

Last Friday's leaks from his legal team didn't do Rove much good. The attacks against Wilson are old news and also don't seem to be very productive. Leaks against Rove will continue and Rove will be entirely on the defensive.

Keith, Indy

Much ado about rumors and innuendo.

Until the investigation is done, I wouldn't jump to conclusions. This who-dont-it isn't solvable on publically available clues.

Keith, Indy

Leaks against Rove will continue and Rove will be entirely on the defensive.

***********

Yeah, it is so bad, I may not vote for him next election!!!

Greenwood

It may be best for the White House that attention stays focused on Rove rather thn spreading to other senior officials. Rove probably doesn't face criminal charges and there is likely little more coming out against him. There are other cans of worms yet to be opened.

TM

What bugs me in this - why would the Dick Morris equivalent be getting classified info?

Good question, but - he did send that e-mail to Hadley, the Pres did have a brewing domestic political problem, and Karl was part of the White House Iraq Group:

Systematic coordination began in August, when Chief of Staff Andrew H. Card Jr. formed the White House Iraq Group, or WHIG, to set strategy for each stage of the confrontation with Baghdad. A senior official who participated in its work called it "an internal working group, like many formed for priority issues, to make sure each part of the White House was fulfilling its responsibilities."

...The group met weekly in the Situation Room. Among the regular participants were Karl Rove, the president's senior political adviser; communications strategists Karen Hughes, Mary Matalin and James R. Wilkinson; legislative liaison Nicholas E. Calio; and policy advisers led by Rice and her deputy, Stephen J. Hadley, along with I. Lewis Libby, Cheney's chief of staff.

Next, from Jim E:

But I still disagree with the "original intent matters!" argument. I'm not sure if you're being sarcastic, but how in the world would the intent of the 'S' matter, unless Rove (or whoever) could prove their own due diligence on the matter before leaking it?

Ahh, but if Slart, the Lion, and Cecil Turner are with me, who shall stand against me?

IN the Murray Waas comment thread, someone (Slart) said that a document with marks like "S" also includes a cheat sheet explaining wht it is that is sensitive in each paragraph. Maybe, as of July 7, the "S" was no longer operative - I hypothesized that the fact of a CIA trip to Niger was classified, until Wilson's CIA approved Op-Ed.

In which case, anyone familiar with that doc would know (arguably) that the "S" was (a) gone, and (b) had never applied to the wife anyway.

Am I right? Who knows? But I might be.

The Unbeliever

Is merely having her name in a paragraph marked "Secret" enough to infer covert status? What if the paragraph in question read like this:

"We think Sadaam's got uranium stored in Top Secret Site #5. After an investigation instigated by Valerie Wilson, we think that uranium came from Niger. Wilson's husband was sent on the trip. The reason we think it's stored at Site #5 is because our Top Secret Spy Satellite took pictures..."

And so on. Basically, do we know if the paragraph was referencing things that needed to be top secret (such as a spy satellite, a locations, or an informant) in connection with Plame/Wilson's report, instead of referencing Plame in a way that indicates her covert status?

The Unbeliver

Aha, I type too slow. TM asked the question 1 minute before me.

Geek, Esq.

TM:

This dead horse is getting sick of the beatings, but it's time to look beyond the IIPA/was she covert/did they know she was covert stuff?

I don't think they have the goods for the IIPA indictment--knowledge that she was covert is damn hard to prove.

The operative statute folks ought to be looking at is the Espionage Act, and the standard is "reason to know that it could be used to harm US national security."

Also, doesn't Rove's presence in the WHIG prove once and for all that the Bush administration treats national security and electoral security as the same thing?

overtaxed

Could one of you experts about secret/not secret information please answer a simple question?

We have learned that Plame's cover was as an energy consultant for a CIA front company, Brewster-Jennings. Would not her employment at a front company by itself make her status "undercover" or at least "secret"?

Thanks very much. This has been bothering me.

Seven Machos

Downing Street Memo. Secret information was made public. Noble-good-proves-Bush-evil-must-get-Rove.

Current en vogue theory of the Left: Bush administration official read INR Memo. Secret information was made public. Craven-awful-proves-Bush-evil-must-get-Rove.

Also, one shiny dime to the first conspiracy-theory-minded person here who can actually explain the difference between the INR and the CIA, and how those two entities interact and gather and disseminate information, and to whom they give it. I will grade your answer liberally.

Slartibartfast
IN the Murray Waas comment thread, someone (Slart) said that a document with marks like "S" also includes a cheat sheet explaining wht it is that is sensitive in each paragraph.

Not accurate, but close. Any classified document will have information classified according to guidelines set down by the classifying authority. There may be a classification guide, but at a minimum there will be the equivalent of a DD254. The first thing to do, then, would be to track down the originator of this document and ask them what, in the paragraph portion-marked as Secret, is (or was, at the time of issue) classified. There are other steps, up to and including contacting the agency head whose authority classified that document. What you'd need is the part of the document that contains the stamp containing the "Classified By" and "Declassify On" information.

I suspect that this, too, will be a dead end of information. Unless someone's got a redacted photocopy of the document in question?

Keith

Also, doesn't Rove's presence in the WHIG prove once and for all that the Bush administration treats national security and electoral security as the same thing?

Not really. Given Rove's close relationship with the president as one of his key advisors, it makes sense that he would at least participate in these meetings so that he can be aware of what is happening--especially given how huge an issue Iraq was. How could a presidential advisor really "advise" at all if he's in the dark about the centerpiece of an administration's policies? It makes sense for him to be there, especially if the purpose was to "to make sure each part of the White House was fulfilling its responsibilities." It'd be another thing if he was drawing up plans for war or setting the timetable for an invasion, but that didn't happen...

Seven Machos

Overtaxed -- Plame's office was inside Langley. There's a Burger King in there. A gift shop. Is there also a small energy company? No.

If you want to be under deep-deep-deep-super-deep cover since 1997, you can't just say you are an energy consultant but show up at faithfully at Langley every day since 1997.

A good analogy in another part of the law is in tax law. To claim a home-business income tax deduction, you have to have a business at home. You need office space, a computer, or art supplies, or whatever. Suppose I tell the IRS that I have a home-business cutting hair. Then, I get audited. I have to produce some evidence that I have any kind of hair-cutting space or equipment at home.

If Plame wants to be under deep-deep-deep-super-deep cover since 1997, she needs to show evidence for it. A 9-to-5 at Langley is no such evidence.

Of course, RICO changes everything...

Geek, Esq.

Did Rove have a security clearance in 2003? Was it the same as Libby's?

Lamont

Seven, I'll accept the challenge. The INR is the intelligence-gathering bureau within the State Department. The CIA is the primary foreign intelligence-gathering organization (unless you count the NSA which is bigger but mostly involved with intercepts, not human intelligence). And there are about 5 other official intelligence agencies and some unofficial ones.

All of the intelligence goes to Dick Cheney's office. If he doesn't get the intelligence he wants sent to him, he goes directly to the agency to browbeat the analysts. He rarely needs to go himself because he has surrogates - John Bolton was at State, Douglas Feith at Defense, etc.

You don't have to believe me. As the reason the CIA sent Wilson to Niger points out, Cheney was running intelligence on Iraq in February 2002.

Now we have a Director of National Intelligence so Cheney will need to share the oversight of intelligence. That's not a big problem, but Cheney is used to sharing with someone more senior.

Keith

So there are reasons to think that the NSC would want this memo, and that Rove would get involved.

Rove apparently denies ever seeing this memo until the prosecutors showed it to him during his testimony. If there is no witness saying, "I saw Karl reading this memo," and if Karl says that he heard the info secondhand, is there any way for the prosecutor to use the "[S]" classification in this memo against him?

In other words, if you can't prove he read it, then Rove becomes just another secondhand source--one who can legitimately say that he never knew that the Plame info was secret.

Geek, Esq.

Keith:

"If there is no witness saying, "I saw Karl reading this memo," and if Karl says that he heard the info secondhand, is there any way for the prosecutor to use the "[S]" classification in this memo against him?"

Yes. Welcome to the world of federal conspiracy law. If Libby tells Rove, and Rove tells reporters as part of common and illegal scheme, they're both guilty.

"In other words, if you can't prove he read it, then Rove becomes just another secondhand source--one who can legitimately say that he never knew that the Plame info was secret."

The Espionage Act covers anyone "with reason to know" that leaking the info could damage national security. That's a low bar to hurdle.

weldon berger

Thanks for the nod, Tom. Regarding what was classified and what wasn't: the memo was apparently in response to Wilson leaking the info about his trip and his conclusions in the months since the State of the Union speech, so he'd probably be in jail if the trip itself or his thoughts about it were classified before the memo was written.

Since his wife's name seems to have come up most often in connection with how he wound up being selected for the trip, maybe the paragraph mentioned other CIA and intelligence personnel by name as well. Both WSJ stories — here's a link to a copy of the October, 2003 one — say the memo dealt with the meetings prior to the trip, including discussions about who would pick up the tab.

One reason the NYT may not be jumping in on this is that their sources seem to be mostly from the Rove camp, and those will have clammed up to keep him off the front page. I still think the WSJ story was a Rove-friendly leak, and the Washington Post followup was a response from someone on the other side.

Anyway. It's fun to watch.

Keith

If Libby tells Rove, and Rove tells reporters as part of common and illegal scheme, they're both guilty.

But if Rove tells reporters what he has heard from other reporters, then he can say he's not really part of a scheme. That may be what he's trying to argue.

The Espionage Act covers anyone "with reason to know" that leaking the info could damage national security.

I have my doubts that Rove would ever be convicted under this statute, given his argument that he heard the info from reporters, didn't know she was covert, and never saw the memo. In other words, if he can cast sufficient doubt that he was part of some grand scheme to leak this vital piece of intelligence, then he can probably dodge conviction.

Martin

Plus I don't think Fitzgerald has utilized the newly appoved coercive interrogation techniques yet.

Geek, Esq.

Rove's "I heard it from reporters" line has been granted entirely too much respect. It's not credible. The man is known as "Bush's Brain" and was in the WHIG--do people really think that Libby and others would tell Matt Cooper or Robert NoFacts or The Queen of Iraq but not Karl Rove?

Puh-leaze.

Btw, isn't it more than a little fishy that he can't remember which journalist told him? Novak and Cooper both say they heard it from Rove, not the other way around.

Keith

Novak and Cooper both say they heard it from Rove, not the other way around.

Novak heard it from another source, then confirmed it from Rove who had "heard that, too." Cooper called Rove after Rove had already talked to Novak, and Rove told him what he by then knew was known by at least one reporter--Novak. It's pretty legitimate to say that, at the point he talked to Cooper, Rove thought the info was known by people outside of top secret circles--casting doubt on how much of a "leak" he was really giving.

Geek, Esq.

Not if he and Libby were co-conspirators.

ArminTamzarian

Espionage Act? What happened to the "R" word? That theory was too stupid, so now we're moving on to stupider theories?

Maynard

Minor correction, Rove actually claims not to know which reporter he FIRST heard it from, rather than not knowing who told him. The implication is that he heard it from several reporters and doesn't recall who told him first. Also, I've yet to read Cooper or Novak claim that Rove outed Ms. Plame to them. They have consistently claimed him as a confirming source for their information however. In fact if you recall Novak specifically called his primary source "no political gunslinger" and if Karl Rove is anything, he definitely IS a political gunslinger. In addition to this, we know that Walter Pincus received specific information on Plame/Wilson prior to Novak or Cooper getting confirmation from Rove. So who told Pincus? And who is Miller protecting by sitting in jail? She never talked to Rove, could she be protecting the same source that talked to Pincus? The source that is probably the ultimate goal of this investigation? A source that will likely turn out to be either in State or the CIA, much as I predicted over a year ago.

Tollhouse

As soon as it became apparent that Plame was likely not covert they switched to the Espionage act, which is even more unlikely to bear convictions. The point I think is to just play up the "Bush lied" about firing someone angle since they are out of ammo on the Plame issue. They will claim that the Espionage act was violated, and that no one was prosecuted because Bush protected Rove and it will go down in history as recieved wisdom that Bush was corrupt. Tied up all in a neat narrative to put in a new edition of Howard Zinn's book.

David

Long ago I worked on a project that I could access materials that were secret only if I could prove I needed them (pretty low level clearance). What I worked on eventually was put in a document (and my name mentioned) that I would never be able to see. Me being in the document is not relevant to my clearance status. You need to prove that Valerie Wilson by direct evidence not indirect evidence, and if the CIA could prove it, the special prosecutor knows it. I suspect that Judith Miller knows who could get into deep trouble over this and doesn't want that to happen. That being said, I believe that it isn't Karl Rove, she would out him in a heartbeat.

Geek, Esq.

Maynard:

You missed the boat on Matt Cooper's testimony:

"So did Rove leak Plame's name to me, or tell me she was covert? No. Was it through my conversation with Rove that I learned for the first time that Wilson's wife worked at the CIA and may have been responsible for sending him? Yes. Did Rove say that she worked at the "agency" on "WMD"? Yes."

Is Libby considered a partisan gun-slinger?

TexasToast

Downing Street Memo. Some one gives British journalist internal British government memo in an apparent attempt to discredit WMD justifications for Iraq war. Secret information of the embarrassing kind - the status of the Iraqi WMD program made little difference in our decision to go to war - was made public.

“Noble-good”? I guess that depends on whether one believes revealing facts that tend to discredit the reasons advanced in public for the Iraq war incident to a debate on the war’s merits is a good thing or a bad thing.

Plamegate. Bush administration officials call six reporters in calculated, deliberate attempt to discredit Joe Wilson for daring to embarrass GWB on the “sixteen words”. Secret information of a potentially criminal kind – the identity of a covert insert favorite word for SPY here - was made public.

“Craven-awful”? I guess that depends on whether or not one believes that revealing the ID of intelligence assets incident to political “revenge” is a good thing or a bad thing.

Criminality aside, it seems to me that the President and the PM, respectively, should be upset that secrets are being leaked and would be clearly justified in firing the applicable leakers, if they chose to do so. I suspect that both have political and practical reasons for not firing anyone. However, from the purely ethical perspective suggested by your comment, I’m not having much trouble distinguishing these particular ethical dilemmas.

Marianne

Seven writes that Plame needs to prove that she was undercover (in July '03). What good would it do to have her publicly discuss what she has been doing for the CIA these past several years?

Her husband is a grand-stander who doesn't deserve much sympathy, but he has been unfairly criticized in one respect. When he went public with his story in July '03, he could not reveal that his wife was CIA or he would have been the one responsible for outing her. Many of his detracters claim he was dishonest for not pointing that out himself.

Crank

Geek - You should keep up with your reading on the Espionage Act. I still think you need to show that Rove or whoever (1) knew Plame was/had recently been covert and/or that her disclosure as CIA would be otherwise harmful to the national defense; and (2) knew they were breaking the law by making that disclosure.

Tommy V

Wow, this is complicated.

I wish there was a federal investigation working on this so I could somehow get all the facts at the appropriate time.

Tollhouse

Which is what alot of people suspect Marianne, that Wilson used privileged information in his Op Ed to smear the President and he and his wife hoped to hide behind her supposed CIA status to allow him to get away with it.

Seven Machos

Lamont -- "Cheney was running intelligence on Iraq in February 2002." This is fanciful.

Marianne -- "[Wilson]...could not reveal that his wife was CIA or he would have been the one responsible for outing her." Then perhaps Wilson should not have gone PUBLIC with his story. Perhaps this was and remains a bureaucratic battle that is properly fought within the domain of democracy.

I am going to go so far as to use all-caps: YOU CAN'T CRY OPENLY TO THE PRESS OVER POLICY OR TURF, THEN CHARGE THAT SOMEONE HAS BROKEN THE LAW WHEN THEY RESPOND TO YOU IN THE PRESS.

You also touch upon a more profound issue: who committed the first and most material act that set into motion this whole non-scandal? It was CLEARLY Wilson himself. He is the one who broke this goofy law.

Seven Machos

Correction: "within the domain of BUREAUCRACY." My apologies.

ArminTamzarian

Crank:

Good work on the Espionage Act. It looks spot-on to me. Certain people here, in their lust for blood, seem to have forgotten that minor point of criminal law that all elements of a crime must be proven beyond a reasonable doubt.

DW West

How was the President smeared? 16 words of his SOTU were contradicted and the White House backed off on those 16 words the very next day. How dare Wilson contradict even one sentence of the President's speech!

Seven Machos

DW -- Not one word of what you allege is true.

1. The president was most definitely smeared. He reported that British intelligence indicated that Saddam tried to buy uranium in Africa -- a big, vast place (you might take a look at a map).

2. The White House has stood behind the claim. Big Media has questioned it and ridiculed it. That's not the White House backing off. What the New York Times opines isn't what the White House says. Try to discern the difference.

3. "How dare Wilson contradict" the president? When you have represented the United States on a diplomatic mission: exactly! It is improper and unethical to then criticize the president in the press, especially in the middle of a war, especially when much of what you say turns out be false (according to the Senate, and to yourself).

Jim E.

Machos wrote, "The White House has stood behind the claim."

Not true. On July 7, 2003, the Bush White House said the 16 words should never have been in the State of the Union.

Geek, Esq.

Crank:

Karl Rove signed this form:

http://www.fas.org/sgp/isoo/new_sf312.pdf

Can you say with a straight face that he didn't know that unauthorized disclosures of classified information were against the law?

Notice also signing that form meant that he really can't dispute the applicability of the "had reason to know . . . could be used to the injury of the United States" language.

The question at the end of the day is if Karl Rove and Scooter and the gang heard about Plame's ID from anywhere other than that memo. If the answer is no, they're going to jail.

Seven Machos

" Problems with the Intelligence Community's HUMINT efforts were also evident in the Intelligence Community's handling of Iraq's alleged efforts to acquire uranium from Niger. The Committee does not fault the CIA for exploiting the access enjoyed by the spouse of a CIA employee traveling to Niger. The Committee believes, however, that it is unfortunate, considering the significant resources available to the CIA, that this was the only option available. Given the nature of rapidly evolving global threats such as terrorism and the proliferation of weapons and weapons technology, the Intelligence Community must develop means to quickly respond to fleeting collection opportunities outside the Community's established operating areas. The Committee also found other problems with the Intelligence Community's follow-up on the Iraq-Niger uranium issue, including a half-hearted investigation of the reported storage of uranium in a warehouse in Benin, and a failure, to this day, to call a telephone number, provided by the Navy, of an individual who claimed to have information about Iraq's alleged efforts to acquire uranium from Niger."

Anyone who thinks that Iraq was not trying to acquire uranium in Africa and in other places is absolutely deceiving themselves.

ArminTamzarian

Still having trouble with burdens of proof and specific intent, I see.

Seven Machos

" Problems with the Intelligence Community's HUMINT efforts were also evident in the Intelligence Community's handling of Iraq's alleged efforts to acquire uranium from Niger. The Committee does not fault the CIA for exploiting the access enjoyed by the spouse of a CIA employee traveling to Niger. The Committee believes, however, that it is unfortunate, considering the significant resources available to the CIA, that this was the only option available. Given the nature of rapidly evolving global threats such as terrorism and the proliferation of weapons and weapons technology, the Intelligence Community must develop means to quickly respond to fleeting collection opportunities outside the Community's established operating areas. The Committee also found other problems with the Intelligence Community's follow-up on the Iraq-Niger uranium issue, including a half-hearted investigation of the reported storage of uranium in a warehouse in Benin, and a failure, to this day, to call a telephone number, provided by the Navy, of an individual who claimed to have information about Iraq's alleged efforts to acquire uranium from Niger."

Anyone who thinks that Iraq was not trying to acquire uranium in Africa and in other places is absolutely deceiving themselves.

DW West

Seven, you are in denial but I enjoy reading your comments. These words look to me like a retraction..

Ari Fleischer on July 7, 2003: "Now, we've long acknowledged -- and this is old news, we've said this repeatedly -- that the information on yellow cake did, indeed, turn out to be incorrect."

Condoleezza Rice during a July 11, 2003 White House press briefing : "What we've said subsequently is, knowing what we now know, that some of the Niger documents were apparently forged, we wouldn't have put this in the President's speech -- but that's knowing what we know now."

George Tenet also on July 11, 2003: "These 16 words should never have been included in the text written for the President"

The Butler Report and the Senate Intelligence Committee report both found that there were valid reasons to suspect that Iraq had sought to buy uranium. So it is puzzling why the above statements were made.

Geek, Esq.

Machos, why don't you spare yourself the trouble of logging off and on and just stick to one handle?

Appalled Moderate

Geek:

You have to prove Rove got that memo. Rove says not. I am sure his e-mail, and certain parties outgoing e-mail have been checked by Fitzgerald. Judging the stream of leaks, I would guess that the party who leaked the memo would leak the e-mail to Rove if he had access to one. My guess -- if I have to make one -- is that someone told him in the White House, but neglected to say anything about Plame's covert status.

I won't comment on Libby becaus nothing disclosed thus far implicates him in anything other than confirming what Cooper heard from Rove. This probably allows plausible deniability on all sides. Rove has a security clearence, so telling him isn't a crime. Rove has no knowledge of Plame's status, so he probably can't be convicted of anything.

Hmm, that seems a little too slick. Any comments from the legal experts here?

Seven Machos

Geek -- Who DOESN'T "know that unauthorized disclosures of classified information were against the law"? That's not really the issue here, is it?

No one is going to jail, except Judith Miller. Speaking of jail, by the way, why isn't Sandy Berger in one? He committed crimes much worse than Karl Rove is seriously accused of committing -- RICO and espionage notwithstanding, of course.

The fact is: you are starting from a desired result -- your desire to see ANYTHING BAD happen to the Bush administration -- and you are working backwards from there. Any old statute will do for you: espionage, RICO, conspiracy, outing covert officers, battery, sodomy (with Jeff Guckert, no doubt), whatever... Just as long as Rove-Bush-Libby-Cheney-bad-evil.

Jim E.

Lying Seven Machos is a lying partisan hack who lies a lot.

Geek, Esq.

AM:

Conspiracy law pretty much neutralizes all that "plausible deniabilty" stuff.

Jim E.

But it is funny that Machos lies about things that are in the public record and are easily debunked. Perhaps he's a lefty posing as a righty? Wouldn't be the first time I'd be slow to get the joke.

Seven Machos

Geek -- I am only Seven Machos. I'm not sure what you are implying above. It seems like another of your conspiracy theories.

Secondly: a riddle for all my Rove-Bush-bad-evil friends, whom I know will love a riddle because they are all so brilliant, like Rove, except when he's not. Here's the riddle:

Agents from a small, irksome nation attempt to buy nuclear-weapons materials in Africa. Intelligence officials from another country come to know of these attempts. The president of a large superpower reports this in a speech. Spokespeople and underlings of the president then report that the attempts did not happen. The question is: DID THE ATTEMPTS HAPPEN?

Here's an easier riddle for you, if you are stumped by the one above: The grass is green. I say the grass is green. My friend says the grass is red. What color is the grass?

ParseThis

you are starting from a desired result

The whole Iraq war in a nutshell. When do we start talking about that again?

Seven Machos

Jim E. -- Now THAT'S the spirit of cordiality that the propretor of this blog has asked for. Good work! Call people liars when you disagree with their conclusions.

KC

Has anyone other than Joe Wilson ever said that Karl Rove told/called six reporters about Plame? Is this really a fact? He told Matt Cooper after he confirmed that he "had heard that too" to Novak. Who are the other reporters?

Walter

How can Machos or anyone deny that the White House backed away from the "16 words" claim? Were the quotes above incorrect? Don't think so - you can find written quotes and actual video in hundreds of places with a quick online search.

Machos posts so frequently that he doesn't have time to check his facts. (Hint - you can't find everything at the RNC website.)

Seven Machos

ParseThis -- I know. Can you believe the nerve of the Bush administration? I mean, there was Saddam Huessein, not bothering anyone, not trying to acquire any nuclear weapons, not gassing Kurds or involved in any ethnic cleansing, not supporting terrorists, not being bombed daily by the Clinton administration, not forced into oil-for-food, JUST MINDING ITS OWN BUSINESS.

Then, Bush becomes president, any for no reason, with NO PRETEXT WHATSOEVER, he sends the army to peace-loving Iraq.

I tell you. The gall. Rove-Bush-Cheney-evil-bad will stop at nothing.

Forbes

Geek: I'll bet you $50 each, if either Libby or Rove spend any time in jail, as a result of a conviction by Fitzgerald, to your favorite charity. Of course, when Fitzgerald fails to indict (or especially convict), I'll expect to hear your request as to where to send the money.

Game?

ArminTamzarian

I wonder if Geek is even aware of the elements of a conspiracy.

These conclusory statements of law made by someone who obviously has no idea what he's talking about are getting rather tiresome.

Tommy V

DW,

You will never get the administration to admit it, but those statements backing off the "16 words" were a political mistake, and it kind of pissed the British off, too, since their intelligence was not based on the forged documents. There was a time, for less than a week, I believe, that the myth was advanced that those "16 words" were based off the forged documents. The administration got its act together quickly and has since established that Iraq did attempt to buy material in Africa, and that Joe Wilson lied.

That was a very selective use of qoutes to tell less than the whole story.

You guys got really burned when the 9/11 commission report came out, it might be a good idea to sit back and wait for what Fitzgerald has to say.

Seven Machos

Let me re-phrase: the White House has not said that the claim itself was untrue. This is because the claim itself is true.

Who here can seriously deny that Saddam Hussein was trying to obtain nuclear materials in Africa? On what basis?

Jim E.

You just wrote that the White House continues to stand by the 16 words in the State of Union. Two different people pointed out you were wrong and provided specific evidence.

You ignore those posts and don't acknowledge your error. You do this often. Therefore, you are not mistaken, you are a liar.

You are not cordial, and in fact, after one of the very first times I posted here, you started calling me names and mocking my law school training (of which I never claimed to have any) for merely pointing out that you had been -- surprise -- wrong about something simple and factual and in the public record. (You said Fitzgerald had already publicly said no crime had been committed.) You have been an absolute dick from the moment I've read this website.

You can have your own opinions, but not your own facts. Everyone makes misstatements. You, on the other hand, lie.

But don't worry. I won't hold your lying dickishness against all conservatives.

P.S. What you just wrote isn't a correction. You just moved the goalposts and verified the 16-words with zero evidence.

Seven Machos

Jim E. -- Your civility knows no bounds.

Geek, Esq.

Forbes:

Tempting offer, but I've sworn off of bets on criminal trials after OJ.

Seven Machos

Why is it that we people who think no one in the administration will be indicted or convicted are willing to put our money where our mouth is, but the Rove-Bush-Cheney-evil-bad crowd is not? Perplexing.

It's almost like the whole thing isn't about justice or law, but just another in a long line of attempts to make the Bush administration look bad in any way possible.

Forbes

Fair enough.

By the way, I'm guessing you put your money on OJ as guilty, if you've sworn off bets, no?

Tommy V

Steven,

"It's almost like..."

Are you serious?

Geek, Esq.

I couldn't find anyone to bet on "not guilty." :)

Crank

Geek - I intend to get back to blog on that in more detail later, but the short answer is:

*The form proves nothing as to whether Rove, upon learning that Valerie Plame worked at the CIA, knew that she was/had been a covert operative, i.e., that he was dealing with classified information in the first place. Maybe he did know; I remain agnostic on the facts.

*Notwithstanding the form's effort to place a burden on the signer to ascertain whether information is classified, I can tell you from experience that federal courts do not warm to the idea of placing the burden of proof on the defendant in a criminal proceeding, especially where the defendant's knowledge/intent are at issue. The statute says "willfully" and "reason to believe" that the particular disclosed information "could be used to the injury of the United States or to the advantage of any foreign nation". I don't believe that an administrative boilerplate form would overcome the need to prove those statutory elements beyond a reasonable doubt.

*As you are no doubt aware, you can not be guilty of conspiring to commit an offense if you do not have the state of mind required to commit the underlying offense. See United States v. Feola, 420 U.S. 671, 686 (1975) ("Our decisions establish that in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself."); Ingram v. United States, 360 U.S. 672, 678 (1959) (same); United States v. Gurary, 860 F.2d 521, 525 (2d Cir. 1988) (relying on Ingram, notes that where definition of "willful" for underlying offense requires intentional violation of a known legal duty, then conspiracy to commit that offense also requires that definition of "willful"), cert. denied, 490 U.S. 1035 (1989).

TexasToast

Muchos

Civility – A study in comments

11:17 Insult
“one shiny dime”
11:27 Insult, ad hominem
“RICO changes everything"
1:08 Insult
“This is fanciful”
1:10 Correction
1:22 Multiple Insults
“ consult a map, try to discern the difference”
1:52 Insult
“Deceiving themselves”
1:54 Duplicate post
1:58 ad hominem
“Desired result”
2:13 Insult
"Riddle”
2:15 Lecture on Civility
2:21 Insult
“Bush-Cheney –Evil-Bad”
2:26 Re-phrase
2:33 repeat civility lecture
2:38 Insult
“put your money where your mouth is”

Mike

Dang, dude. No offense, but sometimes your posts are really hard to comprehend. I just reread the entire post trying to figure out what you're talking about in this sentence near the end: 'Well, after a week of front-paging Rove-bashers, the Times is silent on the Wall Street Journal revelations.'

What Wall Street Journal revelations are you talking about? Did you mean to write 'Washington Post'? And if so, why would you accuse the Times of 'silence' regarding a story that was broken only this morning? Wouldn't that particular verdict best be made tomorrow morning?

Seven Machos

Tex: I don't think anything I have said is uncivil. I think calling someone a dick is clearly uncivil.

I personally feel that I have gotten the better of the argument here. The people who once tried to argue with me have now resorted to calling me names.

j2

If the document were correctly classified Secret, there would have been other markings on it. The words "Secret" should have been printed on the top and bottom of the page and the back - as well as the caveats associated with the information. The other paragraphs on the page should also have been marked either "(U)" or "(S)" at the beginning of the paragraph. Once you mark one paragraph you're supposed to mark them all so the reader can determine what's classified and what's not. The title of the document should also have been classified with a "(U)" or "(S)" at the end of the title. This document is either in total violation of government classification marking rules or the "S" meant something else.

Geek, Esq.

Crank:

1. The form would be compelling evidence--certainly enough to prevent a motion to dismiss.

2. My theory/speculation on the conspiracy angle is that they all knew what they were doing was wrong, and tried to create plausible deniability so that they could get away with it.

Crank

Sorry, left off a key part there: because the state of mind requirement is the same, anybody who you seek to prosecute for conspiracy has to be proven to have known the same things they would need to have known (re: classified status of information) for a prosecution directly under the Espionage Act.

Crank

Geek - No evidence is needed to get past a motion to dismiss. It's often sufficient just to track the statutory language. That's no help in surviving a Rule 29 motion, though, if it's the only evidence you have.

ArminTamzarian

Geek:

What part of "prove all elements of the crime beyond a reasonable doubt" don't you understand? Do you think the constitutional right to proof beyond a reasonable doubt is something that can be waived by standard form? Do you understand the specific intent requirement of "willfulness?" Will you ever figure out the elements of a conspiracy?

Sigh.

Seven Machos

Will the people here who are so desperately trying to find any possible way to prosecute Karl Rove (and, apparently, as many administration employees as possible) apply the same meticulous vigor should Fitzgerald opt to charge Wilson, or Plame, or some mini-deeep throat at State or CIA?

I certainly hope so, but somehow I doubt it.

By the way, Geek: why charge anyone with conspiracy to commit a crime if they actually commit the crime? I mean, if Rove violated RICO, all manner of espionage acts, and was cruel to puppies, he should face the music, not just some charge that he was PLANNING to commit a crime.

G2

Not sure if this was answered above, but the classification for names of covert agents is always higher than Secret. If the paragraph was only marked as (S) meaning "Secret", than it wasn't Plame's identity that was being classified, it was something else in the paragraph. All papragraphs will be marked with the classification that represents the highest classification for information in that paragraph. A marking of (S) means that whomever wrote the memo didn't think that Plame was a covert agent. Anyone reading that memo, who understands the requirements for classification, could easily understand that to mean that Plame was not a covert agent. Far from being the "smoking gun", this memo, and the (S) classification on the one paragraph that mentions Plame by name, is likely to ensure that Karl lives to see another day.

Geek, Esq.

"anybody who you seek to prosecute for conspiracy has to be proven to have known the same things they would need to have known (re: classified status of information) for a prosecution directly under the Espionage Act."

I guess I was talking about the broader operation of federal conspiracy law, including imputation between co-conspirators.

dick

It seems to me that if you are going to read a classified document, then you have to sign for that document. Unless they can show that Rove signed that he had read that document, then they have nothing. I am going back to the Kennedy era but I don't think that requirement has changed at all. Anything above Confidential or CMHA required a signature before you got to actually read the doc.

DW West

Now it becomes clear, S. Machos. The retraction of the "16 words" must now itself be retracted. Why? To prove Joe Wilson is a liar.

For Wilson to be shown to be a liar, it would be necessary to prove (1) that his claim that the intelligence was twisted was untrue and (2) Wilson knew it to be untrue.

Was it untrue? Wilson's statement was certainly based on incomplete knowledge, because he didn't have access to all of the intelligence allegedly in the possession of the British government (But to be fair, the Administration didn't have access to it either yet chose anyway to put it in the SOTU.)

Based on what he learned in Africa, Wilson believed that there was no agreement between Niger and Iraq to supply yellowcake. He had no reason to think otherwise, either when he reported back, or 17 months later when he wrote his op-ed piece.

He was not alone in that belief. The State Dept. knew the documents that led to his trip were forged even before Wilson's February 2002 trip. And the CIA shared that opinion by March 2002.

And the White House - Tenet, Rice and Fleischer - all acknowleged the "16 words" mistake in July 2003. They may now wish they hadn't done so, but the full videotape is there for all to see.

It may have transpired that Wilson's report didn't get as wide a distribution as he thought, and that his report did not change many minds. These factors in themselves don't make his belief in his conclusions any less true.

What would have been a lie is for Wilson to have come back and supported the false claims of the intelligence report that he had been sent to investigate (based on documents proven to be forgeries a few weeks later).

Jim E.

1. "I don't think anything I have said is uncivil."

You may think it, but it's not true. Of course, I'm willing to admit this is subjective.

2. "I think calling someone a dick is clearly uncivil."

I agree. But you were whining about your treatment and civility BEFORE being called a dick. Given your lenient standard on Pt. 1, you can apparently dish it out, but can't take it.

"I personally feel that I have gotten the better of the argument here."

I've never even seen a conservative commentator on this thread agree with any original points you've made.

M. Simon

If I was a betting man I'd bet Plame outed herself.

The comments to this entry are closed.

Wilson/Plame