Practical Problems With Perjury

Michael Levy, white collar defender and former prosecutor, had a guest piece in the Sunday WaPo describing the challenges faced by Special Counsel Fitzgerald in gaining a conviction for perjury against Lewis Libby.

Libby has hired the A-Team for his defense.  And Plan A is a jury acquittal.

Plan B, presumably, is to present a strong enough defense that Bush will have political cover to pardon Libby after the 2008 elections.  Republican Congressman who feel the need can fulminate, but 2010 will be ages away, and President-elect Hillary Clinton will not be in a position to denounce a controversial pardon.

The Marc Rich pardon is not a suitable analogy for a possible Libby pardon, by the way, since the Rich pardon annoyed a Democratic base that did not want to defend the indefensible, again.

A Libby pardon will look more like the Bush I pardon of Caspar Weinberger - folks who, at that point, will have been denouncing Bush for eight years will denounce it, but earnest Reps will not blink.

And as we ponder the oddity of sending to trial a man who may have a pardon in his pocket, let's remember the other asymmetry at work - Libby will be tried in front of a possibly unsympathetic Washington DC jury.

For a bit of jury analysis that would have better aired on the Comedy Channel, let's go the Chris Matthews of Hardball.  His guest, Stan Brand is a former counsel for the U.S. House of Representatives on the Democratic side:

MATTHEWS:  Let's talk about D.C. jurors.  Working people, some middle-class people, racially divided, probably largely African-American...

BRAND:  Well, all I'll say about D.C. juries, I think they're the best juries in the world.  They come in, conscientious, they look at the evidence.  They're not predisposed to the government. 

MATTHEWS:  Do you think H.R. Haldeman would agree with you on that?

BRAND:  No, but there are plenty of people, like Mike Espy and others...

MATTHEWS:  ... who get off.

BRAND: And not just African-American defendants get off in front of D.C. juries, because D.C. juries stick to the instructions they're given.

Let's see - a black Democrat was acquited in front of a black jury, so Libby has nothing to worry about.

I have not inspected the video, so I can not tell you whether anyone managed to keep a straight face during that exchange.

MORE:  It looks like it was a tough day for the reality-based side.  No, not just today, when the aptly named "Crooks and Liars" told the reality based community that Paul Vallely and Joesph Wilson were never on the same show at Fox News in 2002, or even on shows the same day at Fox News.

The other tough day would be Sept 12, 2002, when both Wilson and Vallely appeared on Studio B.  Well, so says Lexis, anyway, and I am urging all low-budget sleuths to check out Lexis a la Carte - the registration is free, the searches are free, but the opportunity for mockery is priceless.

AJ Strata has more dates when the two gentlemen were on Fox News the same day, and Wilson admits to having met Vallely more than once, so the point seems to be settled.

And we care because...?  It may not have any relevance to a Libby trial, since Fitzgerald is not charging misuse of classified information or the outing of an agent, but Wilson's casual mentions of his wife's employer may be significant in the event of a Libby pardon.

And I suppose an aggressive, far-ranging defense might try to argue that Libby had no motive to lie to investigators or the grand jury, since there was no underlying crime to conceal.  Tricky, since it looks like he was lying because he was worried about exactly that.  But that was then.

Comments

[p.lukasiak]

Levy's article seems to ignore the evidence that FitzG has --- Libby's claim that he completely forgot that he knew Wilson's wife was CIA when Russert (according to Libby) told him about it, and the evidence that Libby had told Fleischer about Wilson's wife three days prior to his conversation with Russert, and told Miller about Wilson's wife two days prior to the Russert convo.

Yeah, MAYBE a really busy guy could forget that a month earlier (June 11-14) he had been told by four or five different people that Wilson's wife was CIA. But I don't care how busy you are, you don't tell people about it on July 7 and 8, then claim that you thought you were hearing it for the first time on the July 10th. THAT is your "oh come on" moment, from which all will follow.

Libby's only hope is that "exculpatory" evidence will be excluded on national security grounds, and/or that the fishing expedition that his lawyers are planning to pursue with the journalists in the case will result in their not testifying.

Libby doesn't want a jury trial, and he doesn't want to "clear his name." Libby wants the charges dropped because key evidence will be excluded.

[r flanagan]

As long as you're mentioning the Marc Rich
pardon you oughtta also mention that Scooter was his long time attorney .
I am NOT repeat NOT saying that implies
any involvement by Libby in Rich's alleged
crimes (maybe they were proven- I just
don't remember). I have no reason to believe
that and therefore , I don't.

But that former connection is a mildly ironical fact when discussing another presidential pardon.

[Lion]

The way Fitzgerald affirmatively alleged in the indictment that Plame's status was classified, and was not generally known, the defense has to anticipate that he will bring it up in opening statement, and the door will be open. Call Vallely to the stand; call Andrea Mitchell. Get the jury wondering what this is all about, and which side is being straight.

[kim]

p.l., you say that Libby's only hope is that witnesses don't testify. What is the chance of that?

What are they gonna do? Plead the Fifth? Ask for a nicer interviewer?
===================================================

[kim]

I think it needs to be explored why it seems that Fitz is unable to ask some questions that the defense will be able to do. Just those circumstances seem to have led to the quandary we seem to be in; that Fitz is unable to determine whether he has a case or not. Is this in the structure or did he just foul up?
===============================================

[TM]

Good point about the Libby-Rich connection.

IN an earlier psot, I had said this:

NO WORRIES: Libby, at least, is up to speed on controversial pardons:

Vice President Dick Cheney's chief of staff testified Thursday he believes prosecutors of billionaire financier Marc Rich "misconstrued the facts and the law" when they went after Rich on tax evasion charges.

The testimony from Lewis "Scooter" Libby, who represented Rich dating back to 1985 but stopped working for him in the spring of 2000, came during a contentious, hours-long House committee hearing into former President Bill Clinton's eleventh-hour pardons.

But it is worth repeating.

Is this in the structure or did he just foul up?

It seems to be in the structure - DoJ guidelines are pretty strict about subpoenaing reporters (and we don't want to turn them into another investigatory arm of the law) but the defense can do whatver it wants).

I guess the key wrinkle is, it is pretty unusual for reporters to be so central to a story.

[kim]

Thanks, and it does add to the theory that Fitz may be using this mechanism to get at the reporters. Apparently this affair is going to be about the 1st and 6th amendments after all. Hail Judy!

And, as a bonus, a hint that Fitz is playing a pretty deep game, after all.
============================================

[TM]

Libby's only hope is that "exculpatory" evidence will be excluded on national security grounds

I can't dig it up just now, but I have already offered my Bold Prediction: *IF* the widely held view on the Right is correct, and this Plame leak is essentially a CIA hype job designed to embarrass the Administration, te CIA will not want to let that out.

SO, they will argue that Ms. Plame's status is so super-duper sensitive and the damage assessment so sacry that it will be better for national security to call the whole trial off.

That will allow uber-libs to go to their graves claiming that there was soomething here (we all believe the CIA, yes?).

And basic questions - how long did the CIA think Plame would be ignored by foreign intel services after her husband promoted himslef as a consultant to the CIA; why didn't the CIA Press Office have Tenet call Novak or his editor; why the reporting that Plame was moving from NOC to State Dept cover - will remain unanswered.

Well, officially unanswered. And no, I am not sure what role Goss will play in this, other than to try and manage an in-house rebellion.

[kim]

Well into his second year, Fitz's actions seemed sophomoric; sophisticated enough not to touch the big boys and too moronic to know what they were talking about. Maybe he's matriculating.
============================================

[kim]

And just why don't you think Fitz has a duty to investigate that? Or do you? I think he does. Let it all hang out. What, are we children?
=================================================

[kim]

Pentagon claiming it for Able Danger. CIA claiming it for Plamegate. No. Enough. Out, out.
===============================================

[Dwilkers]

I'm stuck on why Fitz would claim in his press conference that Plame's identity was not widely known when so many people say it was.

Has he interviewed them and doesn't believe them? Or not interviewed them at all? That's a pretty big conflict. In fact I just scanned the indictment and it says it plainly: "Valerie Wilson's affiliation with the CIA was not common knowledge outside the intelligence community."

Why would he say that when we know for a reasonable certainty its not true?

I'm not a lawyer. Doesn't he have to prove everything asserted as fact in each count of the indictment to get a conviction on that count?

[kim]

Here's a nice little irony for you. We still don't know what she does for the CIA. It's classified.
======================================================

[Syl]

TM

why the reporting that Plame was moving from NOC to State Dept cover

In fact, we don't know that her status had not already officially changed off NOC. A status of State Dept cover is classified too, I think.

[p.lukasiak]

p.l., you say that Libby's only hope is that witnesses don't testify. What is the chance of that? What are they gonna do? Plead the Fifth? Ask for a nicer interviewer?

Actually, I can see circumstances in which they would "plead the First." We know for a fact that Miller got a deal to limit her grand jury testimony to her conversations with Libby. (I think that Cooper had a similar deal---don't know about Russert.)

The defense team has made no such deal, and is free to ask Miller whatever they want when she appears as a witness. Its not unlikely that Miller will refuse to answer the questions citing "journalistic privilege", at which point the defense would move to have her entire testimony stricken from the record and disregarded by the jury --- and the judge would pretty much have to grant that motion.

**************************

I think it needs to be explored why it seems that Fitz is unable to ask some questions that the defense will be able to do. Just those circumstances seem to have led to the quandary we seem to be in; that Fitz is unable to determine whether he has a case or not. Is this in the structure or did he just foul up?

Fitz has an ironclad case against Libby right now on perjury and obstruction. He also has a "probable cause" case for violation of the IIPA, and (grand juries being notoriously malleable) doubtless could have gotten an indictment on IIPA had he chosen to do so.

But (based on what we know today) it would be difficult, if not impossible, to get from a "probable cause" indictment to a "beyond a reasonable doubt" conviction in a jury trial. The IIPA case rests on the conversation with Cheney, which Libby swore he had forgotten -- FitzG would have to prove that Libby is lying about that specific conversation (and would probably have to indict on an additional perjury charge). And there is evidence in the case that could be construed as supporting the claim that Libby forgot (like telling Miller that "wilson's wife" worked for WINPAC, when he was told by Cheney she worked for CPD.)

If Libby indicted on IIPA, that crime would become the "central charge" in the indictment. Juries are less likely to convict on the lying and obstruction charges if they acquit on the "central charge", and FitzG doesn't want to take that chance --- he doesn't want Libby to have any "wiggle room".

***********************

I'm stuck on why Fitz would claim in his press conference that Plame's identity was not widely known when so many people say it was.

because "what everybody says" and the truth are often at odds with each other. This is especially true when "everybody" consists entirely of wingnuts. Mainstream reporters with longstanding ties to the DC establishment and social circuit (Russert, Pincus, Miller, and yes, Mitchell) have consistently denied knowing that Wilson's wife was CIA before this controversy erupted.

There is also the possibility that "what everyone knew" was not known until after Wilson started talking to reporters, and the White House started looking into him. If Judith Miller and Bob Novak are to be believed, someone other than Libby and Rove were talking about "Wilson's wife" and using "Plame" in reference to her. One should not discount the possibility that there was a "rogue" effort to discredit Wilson prior to his NY Times piece that included gossip about Plame that was spread among the "wingnuts" in DC.

[Tom Bowler]

Dwilkers,

...not common knowledge outside the intelligence community...

I suppose "common knowledge" could mean just about anything. Walk down Main Street in Peoria and ask if anybody knew Val was covert, and you wouldn't find it to be "common knowledge".

I hold out faint hope that Kim is right, and Fitz is playing a deep game.

[p.lukasiak]

In fact, we don't know that her status had not already officially changed off NOC. A status of State Dept cover is classified too, I think.

not just "classified", but "covert" as defined by IIPA. (IIPA does not just cover NOC agents.)

One thing that people forget is that the definition of "covert" uses the phrase "has within the last five years served outside the United States." Because embasseys are considered sovereign territory, if Valerie Plame went to an embassey party with her husband during the last five years, and maintained her cover ("I used to be an energy consultant, now I'm a soccer mom") she would fit inside an (expansive) definition of "covert."

[Syl]

p.luk. is basing his musings on an 'ironclad' case of perjury against Libby and that if, indeed, Libby heard about wilson's wife from Russert, Russert got his info from other wingnuts anyway.

Does not compute.

If Libby heard from Russert that wilson's wife was CIA, which explains Libby's inarticulate statements showing he was surprised to learn of this for the first time from unofficial sources, Russert's source for HIS knowledge only matters if it wasn't originally Libby or someone Libby knew had told Russert.

Unofficial gossip among reporters is certainly apropos to Libby's defense of the perjury charge.

Thus fitz does NOT have an 'ironclad' case against Libby.

[Lion]

"Doesn't he have to prove everything asserted as fact in each count of the indictment to get a conviction on that count?" In this instance, the answer is no, because her covert status, and whether it was common knowledge, are not elements of any of the crimes charged. The allegations are entirely gratuitous, and I'm puzzled as to why he included them in the indictment. If he makes it an issue at trial, and it is in fact untrue, he'll pay for it in credibility with the jury. Apart from the people now being cited as claiming it was common knowledge, recall also that there was a long-time senior CIA guy who made the same assertion quite some time ago. Line him up for trial.

[Syl]

p.luk.

she would fit inside an (expansive) definition of "covert."

But you can't ignore the other limitations to charging under IIPA. One of which is the necessity to show that the CIA was actively protecting knowledge of her CIA affiliation from the public.

It seems, even with fitz understanding that knowledge of her affiliation was not 'widely known' he seems to have drilled down to only the basic release of classified info. Her status was classified. Whether she was officially NOC or under State Dept. cover doesn't matter for bringing that charge.

But whichever status she had officially does affect whether a CIA referral was made or not.

[p.lukasiak]

p.luk. is basing his musings on an 'ironclad' case of perjury against Libby and that if, indeed, Libby heard about wilson's wife from Russert, Russert got his info from other wingnuts anyway.

I'm basing nothing on "Libby heard about Wilson's wife from Russert". There is no reason to suspect that Russert is lying. He has no motive.

[Paul]

p. luk.
"Mainstream reporters with longstanding ties to the DC establishment and social circuit (Russert, Pincus, Miller, and yes, Mitchell) have consistently denied knowing that Wilson's wife was CIA before this controversy erupted."
Sorry, Lexis has the transcript where Mitchell said that it was common knowledge that Plame was CIA. Knowing this does that change your analysis. Don't trust me, TM found it or go to Lexis is you have $3. Stop spreading disinformation

[Dwilkers]

"The allegations are entirely gratuitous, and I'm puzzled as to why he included them in the indictment."

Exactly. So why do it?

And as far as the 'common knowledge' part here's Andrea Mitchel (not a member of the VRWC as far as I know); "It was widely known among those of us who cover the intelligence community....". I don't know that I would want to argue that there is a significant difference between 'common knowledge' and 'widely known'.

Its sorta like all the 'he said yada yada to Tim Russert' type stuff. Very difficult, nigh on impossible it would appear, to prove those things. Why would he put that stuff in the indictment when it doesn't pertain to the specific charge?

A deeper game? Hmm. I suppose that's the only conclusion one can come to, when you put it all together with his also strange assertions about damage to national security etc at his press conference.

Otherwise its just sloppy and unprofessional. But a US Atty with 2 years to investigate wouldn't produce a sloppy indictment on the last possible day. Right?

[p.lukasiak]

But you can't ignore the other limitations to charging under IIPA. One of which is the necessity to show that the CIA was actively protecting knowledge of her CIA affiliation from the public

and you have evidence that shows that the CIA did not do so? That no effort was made to ensure that Plame's status as an covert agent remain a secret?

You simply cannot build your theories on the assumption that stuff that you don't know about never happened --- and this is especially true in cases where the activities and actions of an NOC agent are concerned.

Instead, I suggest you take the "Occam's razor" approach --- what makes the most sense? That the CIA would simply write off the career of a covert agent because she got married and had kids, or that the CIA would want to continue to exploit her knowledge and contacts despite the fact that she was no longer willing to continue in her previous job? Does it make sense that the CIA would risk having the cover of other agents blown because they failed to maintain the fiction that Valerie Plame worked for a real company called "Brewster-Jennings"?

The problem with the speculation that goes on here is that it is premised on assumptions that, upon examination, and absurd in the extreme. It simply makes no sense that the CIA would NOT do what it needed to do to maintain Plame's cover.

[cathyf]

p., do you just make this stuff up? Or are you smoking something and not sharing?

(like telling Miller that "wilson's wife" worked for WINPAC, when he was told by Cheney she worked for CPD.)

According to Miller, her notebook says, "wife works for bureau?" and it's in her handwriting. As to whether Libby said this to her, she said this to Libby, or she only thought it because of something else that one of them said that no one remembers, Miller has no idea. Since the writing is in her notebook and in her handwriting, the only fact we can be sure of is that those words were in Miller's head when she was writing it. She has stated publicly that she doesn't know what "bureau" this is, and can only speculate as any other person who reads the words can speculate.

WINPAC (p's guess) is mighty improbable as guesses go. "A bureau of the CIA" (Fitzgerald's guess) is pretty goofy, too. Not as probable as Fitzgerald's first guess, the FBI. Cecil Turner's guess (Miller meant INR) is probably the most likely of all of them. My "wild card" options of Bureau of Land Management, Bureau of Mines, Census Bureau are probably not likely, although the BLM is in charge of energy leases on federal lands, and Ms. Plame was an energy analyst... The interesting point about CT's guess is that the fundamental point that the administration was making was that the VP did not send Wilson, no top intelligence officials sent Wilson, Wilson was sent by the low-level WMD people. That was an inter-agency team, consisting of INR (state dept), WINPAC (CIA), CPD (CIA), etc. If Miller left with the idea that Wilson was sent to Niger when the clowns at INR (including Mrs. Wilson) suggesting to their CIA buddies that Mr. Wilson was their guy, then that would be an example of Libby successfully protecting Plame's CIA identity.

I think the Miller exchange (the exchange with Fitzgerald) is important for another reason. The entire false statement leads to obstruction argument is a claim about the state of mind of the investigators. So you establish in the trial that Miller's true statement (paraphrased as, "I don't know what Libby said, or if he said anything. I'm just guessing.") was heard by Fitzgerald as a false statement ("On June 23rd, Libby told Miller that Plame worked for a bureau of the CIA.") Well, if Fitzgerald has an English comprehension problem, where he hears what he wants to hear, not what the witness intended to say, then the whole "obstruction" thing evaporates -- Fitzgerald may have been obstructed, but it was purely a matter of what was going on in his own head and had nothing to do with what Libby, or anybody, testified.

cathy :-)

[p.lukasiak]

"The allegations are entirely gratuitous, and I'm puzzled as to why he included them in the indictment."

there is a simple and logical explanation -- it explains why the investigation was undertaken.

As for Mitchell's comments, keep in mind that she has also said that she didn't know about Wilson's wife. In other words, her reporting was probably based on someone else telling her it was "widely known" -- and not based on conversations with numerous colleagues that would allow her to conclude from personal knowledge that it was "widely known."

(There is also the question of when it supposedly became "widely known". We know that Wilson's wife was being discussed in the White House and among "State Department Personnel" as early as June 11th. )

[Anonymous Liberal]

I'm surprised how much traction this claim from Vallely is getting among conservatives.

I'll admit, for all I know, Wilson really did blow his own wife's cover in the green room at Fox News. But isn't a whole lot of skepticism in order here?

We're supposed to believe that Wilson didn't tell his neighbors, his family, or other journalists anything about his wife's secret job, but he told some crank at Fox News who he didn't even know? Moreover, we're supposed to believe this general sat on this crucial piece of information for over two years? This information, if true, would not only publicly humiliate Joe Wilson, but would be incredibly helpful for the White House. But it's just now coming to light after Libby has been indicted? Please.

This is a classic example of the uncritical acceptence of a claim because it is exactly what you want to hear. Liberals are just as guilty of this in other contexts. When people hear a "fact" that fits perfectly into the narrative they want to believe, their internal bullshit detectors suddenly stop working entirely.

This Vallely story has all the signs of being a partisan disinformation campaign. Perhaps it's not, but a HIGH level of skepticism is in order here.

Let's turn this around. How would conservatives react if some crackpot liberal started telling people that Rove told him back in 2003 that he outed Plame on purpose because he wanted to destroy her career? Would you be skeptical? I'm guessing so.

(by the way, TM, this entire comment is directed at some of the other commmenters here, not you personally).

[p.lukasiak]

p., do you just make this stuff up? Or are you smoking something and not sharing?

(like telling Miller that "wilson's wife" worked for WINPAC, when he was told by Cheney she worked for CPD.)
According to Miller, her notebook says, "wife works for bureau?" and it's in her handwriting.

Cathy, are you just here to spew right-wing talking points in complete ignorance of the facts of the case.

I suggest that you go READ Miller's account of her discussion with Libby.

Here is what you will find.

1) Miller's notes of her conversation on June 23 include the "Wife works at bureau?" line.

2) Miller's notes of her conversation on July 8 include the "wife works at Winpac" line. Specifically

At that breakfast meeting [July 8th], our conversation also turned to Mr. Wilson's wife. My notes contain a phrase inside parentheses: "Wife works at Winpac."

Before you go around spewing insults, check your facts, because this awesome display of ignorance does not enhance your credibity.

[Appalled Moderate]

p:

One problem with Occam's Razor is that it does not explain why Joe Wilson was allowed by the CIA to go public. The failure to get him to sign a non-confidentiality agreement is one of the most puzzling things about this.

[Appalled Moderate]

Anon:

Your points make sense. But, given the way Wilson has hogged the spotlight over the last few years, it is easy (probably too easy) to see him being a blabbermouth about this.

So, yeah, maybe the commenters are being too uncritical. But this fits the impresion Wilson has left of himself over the past few years.

[p.lukasiak]

One problem with Occam's Razor is that it does not explain why Joe Wilson was allowed by the CIA to go public. The failure to get him to sign a non-confidentiality agreement is one of the most puzzling things about this.

Occam's razor is about coming up with the most plausible explanation for an action, even if that action doesn't seem to make much sense.

In this case, I don't think there is an "obvious" explanation -- at the same time, the fact that Wilson's trip (and the failure to get a confidentialty agreement) happened in February 2002 belies the theory that there is some vast CIA conspiracy to discredit Bush by using Wilson --- it would require a great deal of prescience on the part of the CIA to predict that not only would Bush invade Iraq, but that questions about the failure of intelligence would arise because no WMDs at all were being found in Iraq.

If I have to come up with an explanation, I'd posit that Wilson wanted to maintain his distance from the CIA, and not signing a confidentiality agreement was a means of doing so. I'd also posit that the CIA trusted Wilson's discretion. To me, that's a plausible explanation.

[Gary Maxwell]

Anon You wrote:

This is a classic example of the uncritical acceptence of a claim because it is exactly what you want to hear. Liberals are just as guilty of this in other contexts.

then

This Vallely story has all the signs of being a partisan disinformation campaign.

Well are you guilty of your own uncritical acceptance? why is Vallely lying? And faced with a slander suit he sticks to his story? What specifically makes him suspect? Retired military ( does that fit your view of the military?) or Fox News ( I am sure I know what you think here ).

Now on the other hand Joe Wilson has been shown to be, lets be charitable, loose with the facts, and he worked as an advisor to the Kerry campaign. And his wife ( I think Va is a community property state BTW) made documented contributions to Democrats. Thus we know the Wilsons to be partisans. Yet you are buying his every word.

As the ROCK often says, "Smell what the Rock is cookin'."

[p.lukasiak]

What specifically makes him suspect? Retired military ( does that fit your view of the military?) or Fox News ( I am sure I know what you think here ).

perhaps its Vallely's advocacy of Psyops against everyone, including the American people.

http://www.moharer.jeeran.com/mohhtm/eir228.htm

In other words, when a person making an outrageous claim is a specialist in disinformation, skepticism is not unwarranted.

[Lion]

"there is a simple and logical explanation -- it explains why the investigation was undertaken." But as I recall, in his opening remarks Fitzgerald was at pains to stress that one "doesn't investigate a statute." There is no need whatsoever to explain in an indictment why the investigation was undertaken. As to the IIPA, it requires a showing that the agency was taking "affirmative steps" to ensure that the identity not be disclosed. No such steps have been shown, and to the contrary Novak says an agency employee confirmed Plame's status to him over the phone, and did nothing more than ask him not to publish. In cases where the agency is truly taking affirmative steps, a senior official--typically the director--makes the request.

[Syl]

p.luk

and you have evidence that shows that the CIA did not do so?

Oh please. At least pretend to know the facts in this case.

Remember the name H-A-R-L-O-W? Exactly which agency did he work for?

[Syl]

p.luk

Psyops?

As if Vallely would put his own name to it. If this were really psyops he would have found someone else to make the claim.

[Syl]

re Occam's Razor

In fact if Occam's Razor is used, every instance of a choice or decision that could have gone one way but instead went the other has one thing in common, the CIA.

-Wilson's choice to go public (no NDA with CIA so he was free to do so)

-Administration struggles to set the record straight (no CIA report with Wilson's name on it that could be used to easily refute him)

-Novak goes to print (No attempt by CIA to stop the article, only a weak attempt at asking Novak not to print the name)

-Possible misclassification of Plame yet CIA refers to Justice the alleged leaking of a CIA officer's identity.

-CIA leaks the referral which causes a sh*tstorm in the press which then demands an investigation with a special prosecutor

[Syl]

Lion

In fact it was even less than a weak attempt to stop Novak from publishing. It was a weak attempt by Harlow to stop Novak from publishing the name. The rest, which confirmed that Wilson's wife was CIA, was fine by them.

[TP]

Do any of the lawyers here think that, at trial, Libby is going to have to try to establish a timeline of when he heard things officially and when he heard them unofficially in order to prove that he only passed unofficial tidbits he learned from reporters along to other reporters?

[Gary Maxwell]

when a person making an outrageous claim is a specialist in disinformation, skepticism is not unwarranted P luk

This is exactly why I discount anything you write.

[Syl]

TP

re a Libby timeline..

I'm not so sure it matters much. Who do we know he told that shouldn't have known it anyway?

Miller - questionable besides she may have had a security clearance and/or already known.

Fleischer - there's no proof he ever told anybody else. Inside admin gossip is not illegal.

Rove - there's a problem because Rove told Cooper (what Libby said he learned from Russert). However it was on double super secret as background to explain why Cooper shouldn't trust Wilson 100%. Otherwise, again, inside admin gossip which is not illegal.

Russert - may not have said anything to him

From what's shown in the indictment, I can see why fitz couldn't charge an underlying crime here at all.

Libby needs Russert to admit he forgot he told Libby that wilson's wife was CIA. But only for the perjury and false statement charges. The Cooper stuff should simply be thrown out (I heard that too not confirming anything official). And once those charges are tossed, the underlying obstruction is gone.

[Syl]

Ooops, TP's question was addressed to lawyers. IANAL.

[BurkettHead]

On or about 6:54 am, in referring to the “affirmative measures” requirement of IIPA, p.lukasiak said (in a thread where things only seem to happen once):

“and you have evidence that shows that the CIA did not do so? That no effort was made to ensure that Plame's status as an covert agent remain a secret?”

We’re discussing a theoretical criminal prosecution under IIPA. The prosecution has to prove every element of the violation beyond a reasonable doubt. The statute clearly uses the term “affirmative measures,” rather than “an affirmative measure.” There must be more than one “affirmative measure” (i.e., marking a paragraph in a single memo “classified”). I’m not aware of any case law on the topic, but, it seems to me that, for a criminal conviction under IIPA, the prosecutor will have to show that, given the totality of the circumstances, the CIA was actively taking a number of affirmative measures to keep the agents relationship with the CIA secret.

If I were defense counsel, I would argue that, given the totality of the circumstances, the CIA has not taken “affirmative measures” to keep Ms. Pflame’s status secret. I would argue all of her prior outings, especially the communication to Cuba by the CIA through non-secure channels. I would also argue that failing to have Joe Wilson sign a confidentiality agreement, thus permitting Joe Wilson to discuss his trip to Niger with Kristof & Pincus (among others?), as well as making cable appearances & publishing his own Op-Ed piece in the New York Times are all evidence of a lackadaisical attitude on the part of the CIA. Surely, if the CIA was taking “affirmative measures” to keep her status secret, somewhere along the line, someone, including Ms. Pflame herself, would have told Joe to back off & cool it. And we haven’t even gotten to Harlow or possible green room discussions. I would even argue that working at Langley is an indication that the CIA is not taking affirmative measures to keep secret the fact that she has a relationship with the CIA.

Under the circumstances we have here, I think that “affirmative measures”is a more significant problem for Fitzgerald than “covert.”

[TP]

Syl,

Do you think they could have a conversation like this:

Libby: Are you hearing any CIA buzz on this?
Russert: Knowing Joe, he might have an old flame over there.

Libby, remembering his conversation with Miller about Flame is dumbstruck and thinks Russert is giving him a wink and a nod while
Russert thinks he is just trying to humor an important angry viewer and just forgets about it.

Then, again, I don't have very much to do today.

[p.lukasiak]

We’re discussing a theoretical criminal prosecution under IIPA.....If I were defense counsel, I would argue that, given the totality of the circumstances, the CIA has not taken “affirmative measures” to keep Ms. Pflame’s status secret.

I would too. And I think that if FitzG had chosen to prosecute under IIPA, he would have provided information about such "positive measures."

The key thing to remember is that the law requires that the accused knows that "the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States". That's very vague....and the simple fact that her job was classified constitutes "affirmative measures" sufficient to meet the requirements of the law as written. The fact that the CIA may have been "sloppy" or "careless" in protecting a covert agents identity does not negate the existence of the "affirmative measures" that were taken to protect that identity from being disclosed.

(One could go to the apparent intent of the law, and say that the accused had to know that the person had a "cover story" -- that's why Cheney's disclosure to Libby that Plame worked for CPD is important --- CPD is "operations", which is entirely "covert", and comes with an assumption that those involved in operations did so 'under cover'.")

The wingnuts here are arguing that the CIA was sloppy/careless in maintaining Plame's cover story -- and that therefore no IIPA charge could ever be filed. But that is not how the law is worded, and regardless of whether the CIA was careless or not, the only thing that matters is that "affirmative measures" were taken.

[Steve J.]

TM -

Good catch on the Studio B appearances on 9/12/02.

[p.lukasiak]

Do any of the lawyers here think that, at trial, Libby is going to have to try to establish a timeline of when he heard things officially and when he heard them unofficially in order to prove that he only passed unofficial tidbits he learned from reporters along to other reporters?

This is a key consideration --- its one thing to claim that you heard that "wilson's wife worked for the CIA" from reporters, its entirely another thing to claim "wilson's wife worked for the CIA and she sent him on the trip to Niger" from reporters (Libby told both Cooper and Miller that "wilson's wife" was involved in his trip to Niger, AND claimed he got his info from reporters only).

Now, the "explanation" could be that Libby was told by Rove that Novak told him that "Wilson's wife was involved in his trip to Niger" -- which still would mean Libby is technically lying, but would not result in a perjury conviction.

....and it leaves open the eternal question "Who was Novak's original source?"

But this line of reasoning is more of a trap for Karl Rove than it is a vindication of Libby. Libby lied about his conversation with Russert -- there is NO WAY that Libby told Ari Fleisher about "Wilson's Wife" on July 7 (and Miller on July 8) then completely forgot about "Wilson's wife" on July 10. And if Rove is confirming Libby's story with a story that consists of:

Libby: Gee Karl, I just got off the phone with Tim Russert, and he says Joe Wilson's wife is CIA! If she is, its news to me!

Rove: Golly Scooter, i just got off the phone with Bob Novak, and he says that Wilson's wife sent him on that Niger trip! And other reporters have been saying the same thing! And I don't know anything about it!

...well, lets just say that "conspiracy" charges are likely to be filed against Rove.

[Syl]

TP

"Do you think they could have a conversation like this:"

LOL. Yeah, who the hells knows. Right now, I suspect Russert himself doesn't know but suspects he might have known and might have mentioned wilson's wife to Libby.

Will we ever know for sure?

[Syl]

p.luk

I'm afraid your arguments all fall short because they assume the conclusion: that Libby was lying.

[Syl]

p.luk

I'm afraid burkethead has a more forceful argument than yours. That her status was classified does not constitute affirmative measures in any way beyond what classifying any data constitutes.

[TP]

"I'm afraid your arguments fall short..."

Do you think someone will actually tell the jury that Libby is entitled to a presumption of innocence? : ^ )

[p.lukasiak]

I'm afraid burkethead has a more forceful argument than yours. That her status was classified does not constitute affirmative measures in any way beyond what classifying any data constitutes.

Syl, you've just made my case. The law does not require that the "affirmative measures" be effective, merely that they have been taken. It does not, as you imply, stipulate "affirmative measures above and beyond classification". Indeed, one can argue that all measures taken in pursuit of keeping classified information secret are "affirmative measures" under the law, and a prosecutor could go into court with a long, heavily detailed, list of steps the government takes to maintain the secrecy of classified information.

Again, the law DOES NOT require that no sloppiness or carelessness occur in the maintenance of an agent's identity.

It doesn't even have an exception for when the CIA is engaged in a vast conspiracy with the far-left wing of the Democratic Party to destroy America by embarrassing the Greatest President This Nation Has Ever Had. It just requires that "affirmative measures" be taken, and that the person doing the disclosing knew they were being taken.

Period.

[GEB4000]

Fitzgerald will never seek an indictment for violating IIPA because he could never get a conviction. An IIPA indictment would make Joe and Val and her superiors star witnesses for the defense. Once they were finished with their testimony, Fitzgerald's case would collapse, and he probably would even lose the perjury charges he has against Libby. That's why he's narrowed the indictments to perjury and obstruction of justice. His biggest nightmare is seeing Joe Wilson on the witness stand.

[p.lukasiak]

I'm afraid your arguments all fall short because they assume the conclusion: that Libby was lying.

poppycock. I conclude that Libby was lying based on the rather incontrovertible evidence that he is lying about his conversation with Russert. (regardless of whether Russert told him about "Wilson's wife", there is simply no way that Libby "thought he was hearing it for the first time" -- not after telling Miller about her "working for Winpac" two days earlier, and telling Fleischer she was CIA the day before that.)

[Syl]

p.luk.

Classifying someone's status is necessary but not sufficient to satisfy the condition of affirmative measures

Period.

[Syl]

p.luk.

I conclude that Libby was lying based on the rather incontrovertible evidence that he is lying about his conversation with Russert.

Poppycock back at you. If it is determined that Russert did indeed mention mrs. wilson then the evidence becomes controvertible. Libby heard it as if for the first time.

And Libby could easily explain this in a more articulate manner in court.

[TP]

p.luk

How do you conclude Libby is lying before all of the evidence is presented and examined by people who are told that Libby is entitled to the presumption of innocence?

[p.lukasiak]

Classifying someone's status is necessary but not sufficient to satisfy the condition of affirmative measures Period.

Clarice, unless you can cite some standing court precedent defining the minimal standard for "affirmative measures", don't "Period" me.

Instead, why don't you explain what you think constitutes that "minimal standard".

(Keep in mind that you have to list "affirmative measures" only. Not doing something, doing something inadequately, or doing something contrary to maintaining someone's "cover" are not relevant to the statute.

Oh, and here's a hypothetical for you to answer. Someone at the CIA runs across a list of covert operatives. They publish that list. They have no specific knowledge of these people other than they are listed as "covert". Could they be prosecuted under IIPA?

[p.lukasiak]

How do you conclude Libby is lying before all of the evidence is presented and examined by people who are told that Libby is entitled to the presumption of innocence?

Because the evidence that has been presented so far can only lead to the conclusion that Libby is lying, and no amount of additional evidence can change that fact.

You really need to read the indictment, especially the excerpts of Libby's testimony, and considering them within the temporal context. When you consider all the evidence, there is simply no way that Libby isn't lying.

That doesn't mean that he won't me acquitted of one or more charges. For instance, if the judge orders Matt Cooper to answer a question posed by Libby's attorney's, and Cooper refuses cited "journalistic privilege", the judge will probably cite Cooper for contempt and tell the jury to disregard Cooper's testimony in its entirely --- and could very easily throw the charges related to Cooper out of the case.

Libby lied, and he did so deliberately and is guilty of all the things he is accused of. Whether he will be found guilty in a court of law in which key testimony and evidence stands a good shot at being excluded is a different matter entirely.

[p.lukasiak]

If it is determined that Russert did indeed mention mrs. wilson then the evidence becomes controvertible. Libby heard it as if for the first time.

puhleez. Even assuming your premise (that Russert will reverse his testimony) you still have to explain how Libby could tell Miller about "Wilson's wife works at Winpac" and how he told Air Fleischer about "Wilson's wife" right before his conversation with Russert, but completely forgot that he ever knew about "Wilson's wife" when he talked to Russert.

[BurkettHead]

I haven't found any cases which discuss the requirement that "that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States" under 50 USC Section 421. In my opinion, if the issue were to be presented to a court, they would find that whether or not the US is taking "affirmative measures" would be a question of fact for the jury. It is also my opinion that the court would conclude that the proper standard is whether the US is taking "affirmative measures" under the totality of the circumstances.

Section 421 provides criminal penalties. The prosecutor must prove each element beyond a reasonable doubt. Technical compliance by the US is not enough. The test is not whether it is more likely than not that the US took "affirmative measures" to keep the agents relationship secret.

A bit of carelessness here or there probably isn't enough to create a reasonable doubt, nor are a few compliant measures. I think the court would look to the totality of the circumstances. You don't even have a prosecution if the measures were successful. Defendant needn't have any knowledge of those measures.

Practically, the prosecutor would probably go in with a few "affirmative measures" - the ones p.lukasiac cites. Defense counsel would then bring up all of the other issues to show that, under the totality of the circumstances, the US wasn't taking affirmative measures. Since one of the stated elements of a criminal prosecution under 50 USC 421 is that the US is taking "affirmative measures," the prosecution would have to prove that element beyond a reasonable doubt. The defense doesn't have to prove anything - just create sufficient doubt in the minds of the jurors. Practically, that doubt probably needn't even be "reasonable" - just sufficient to keep the jurors from convicting & close enough to reasonable to convince appellate judges not to set aside a jury verdict.

[BurkettHead]

Earlier, I posted:

"Defense counsel would then bring up all of the other issues to show that, under the totality of the circumstances, the US wasn't taking affirmative measures."

More accurately, defense counsel would raise the other issues to create a reasonable doubt in the mind of the jurors.

[TP]

You mean the court won't just accept the p.luk and Fitz say so?

[BurkettHead]

p.lukasiak asks:

"Oh, and here's a hypothetical for you to answer. Someone at the CIA runs across a list of covert operatives. They publish that list. They have no specific knowledge of these people other than they are listed as "covert". Could they be prosecuted under IIPA?"

Of course they can be prosecuted. But the real question is: can they be convicted? There are insufficient facts in your hypothetical to make a determination. Look at the discussion in the amicus brief filed on the Judy Miller subpoena. They list all of the elements of a criminal prosecution under IIPA. If the prosecution proves every one of those elements beyond a reasonable doubt, they can get a conviction under IIPA.

[Sue]

P. Luk,

What evidence have you seen? The indictment? Don't hang your hat on the indictment charges.

[BurkettHead]

You mean the court won't just accept the p.luk and Fitz say so?

Well, a real court won't, but who knows what kind of "court" p.lukasiac deals with.

[Syl]

p.luk.

Why so upset? You 'period'ed me first.

Nyah nyah.

[p.lukasiak]

It is also my opinion that the court would conclude that the proper standard is whether the US is taking "affirmative measures" under the totality of the circumstances.

I would disagree, primarily because the law requires that the accused be aware that affirmative measures are being taken, not that the accused is aware of the "totality of circumstances" upon which they can base a judgement on whether or not its okay to out an agent.

What is at issue it the knowledge of the accused of the actions taken, not the actions themselves.

But at least in this instance, although I think the judge would rule against you, he wouldn't laugh you out of court for presenting this argument.

[p.lukasiak]

What evidence have you seen? The indictment? Don't hang your hat on the indictment charges.

in fact, I'm basing my conclusions (almost) solely on the evidence presented in the indictment.

Basically, Libby is claiming he completely forgot something that he knew for a month, and related to two people right before he claims to have completely forgotten. I don't buy it.

Is Libby going to dispute that he talked to Fleischer about Wilson's wife? He's got a problem, because after that conversation Fleischer was dropping broad hints to the press intimating that there was something fishy in the origins of Wilson's trip. And I don't think that FitzG would have put

On or about July 7, 2003, LIBBY had lunch with the then White House Press Secretary and advised the Press Secretary that Wilson’s wife worked at the CIA and noted that such information was not widely known.

without getting that from Fleischer. In other words, Fleischer's testimony is co-oborated by Fleischer's action.

Then we come to Judy Miller. Miller says in her article (this DOESN'T appear in the indictment) that her notes of her conversation with Libby say "wife works at Winpac" --- and her testimony backed that up.

Yet two day later, Libby supposedly doesn't remember ever knowing that Wilson's wife worked for the CIA?

[Lion]

P Luk has it backwards: "And I think that if FitzG had chosen to prosecute under IIPA, he would have provided information about such 'positive measures.'" If he had such information, he would have chosen to prosectue. He has plainly concluded that he cannot make out a case beyond a reasonable doubt that the law was violated. Speculation that it may have been violated is simply idle. Mr. Libby is innocent of a violation of the IIPA, period. Some may be unhappy with that fact, but it is not going to change.

[r flanagan]

I wonder:
o if Russert made a "note to file" of his
conversation with Libby ?

o and when he reported that telcon to his boss (which I think Fitz said he did) did R
make a note of that discussion ? Which seems likely to me as a cya .

o if the boss wrote one of those note ? Unlikely since most ceo's subscribe to Cardinal Richleau maxim: Never write a letter and never throw one away.

Bottom line I suspect a memo will surface which will support R's story and might well be true. Or not.

[TM]

Because the evidence that has been presented so far can only lead to the conclusion that Libby is lying, and no amount of additional evidence can change that fact.

No evidence? What if, in a bombshell development, doctors and psychiatrists take the stand to testify that

(a) Libby fell off a horse in late June, 2003, striking his head;

(b) he suffered a concussion and short term memory problems, but continued to work;

(c) he seems to have managed a full recovery.

How about, he developed a heart condition, and they put him on memdication which, as an ocassional side effect, results in memory quirks?

How about, he was being treated for a drug/alcohol/depression problem? (George Stepanopolous was treated for depression while in the WH) which may have messed his head?

I am not making any predictions, or offering odds.

I agree that the evidence so far is bad. I wonder if you are willing/able to modify the assertion that "no amount of additional evidence can change that fact."

[kim]

I expect Libby's lawyers will develop previously unimagined additional evidence. So far we've only heard Fitz's side, and lots of reasonable doubt.
==================================================

[TM]

Since he has provided a lot of the text in this comment thread, a "Best of P.Luk" might be pretty amusing (although uncharacteriztically mean-spirited).

I am not going to tackle his entire output, but these were special:

..because "what everybody says" and the truth are often at odds with each other. This is especially true when "everybody" consists entirely of wingnuts. Mainstream reporters with longstanding ties to the DC establishment and social circuit (Russert, Pincus, Miller, and yes, Mitchell) have consistently denied knowing that Wilson's wife was CIA before this controversy erupted.

Andrea Mitchell (Oct 3, 2003), Martin Peretz (New Republic), Hugh Sidey (TIME) - wingnuts all. Nick Kristof has not come forward, but his denial that Plame was ever a source is quite oddly worded.

Well, if you stand far enough to the left, everyone looks like a far righty.

One thing that people forget is that the definition of "covert" uses the phrase "has within the last five years served outside the United States." Because embasseys are considered sovereign territory, if Valerie Plame went to an embassey party with her husband during the last five years, and maintained her cover ("I used to be an energy consultant, now I'm a soccer mom") she would fit inside an (expansive) definition of "covert."

Who knew there was so much case law on this point? Victoria Toensing, who helped draft the statute, said that "served" meant "stationed". Well, that is only her opinion, too.

There is no reason to suspect that Russert is lying. He has no motive.

Well, it is harder to find something you are not looking for (Except when I am looking for the plyers and find the power screwdriver... never mind).

Possible Russert motives - he did not want to explain that one of the most trusted names in news was an alibi witness for Libby and Rove, and could have eneded the hype about this case in October 2003;

if he admits his close involvement, he will lose his lucrative Sunday gig (too close to the story);

Unlikely? Sure. Impossible? Let p.luk tell us!

Instead, I suggest you take the "Occam's razor" approach --- what makes the most sense? That the CIA would simply write off the career of a covert agent because she got married and had kids, or that the CIA would want to continue to exploit her knowledge and contacts despite the fact that she was no longer willing to continue in her previous job? Does it make sense that the CIA would risk having the cover of other agents blown because they failed to maintain the fiction that Valerie Plame worked for a real company called "Brewster-Jennings"?

Occam's Razor says the CIA just didn't care enough about her status to halt publication of either the Wilson op-ed or the Novak piece.

One fine day Mr. P will address the "sloppy tradecraft" argument, as well as Kristof's reporting that she was outed in 1994 and her networks wound down, and explain how likely it was that Ms. Plame's status and Brew-Jen cover would hold up after her hubby announced he was a CIA consultant.

But not today!

It simply makes no sense that the CIA would NOT do what it needed to do to maintain Plame's cover.

And if the CIA was intent on leaking info that hurt the White House?

Before you go around spewing insults, check your facts, because this awesome display of ignorance does not enhance your credibity.

We have remarked on other occasions about his touching concern for the credibility of others.

the fact that Wilson's trip (and the failure to get a confidentialty agreement) happened in February 2002 belies the theory that there is some vast CIA conspiracy to discredit Bush by using Wilson --- it would require a great deal of prescience on the part of the CIA to predict that not only would Bush invade Iraq, but that questions about the failure of intelligence would arise because no WMDs at all were being found in Iraq.

A troubling failure of imagination, or unwillingness to read spy novels.

Agents plant seeds. Whether anyone had any idea that Joe's failure to sign a non-disclosure agreement would later be useful, they could be sure of two things - it wouldn't hurt (as long as he stays married to Val, spousal appeals ought to keep him quiet, if that is necessary), and it might help.

Free options and useful hole cards are not exactly unheard of, outside of p.luk world.

I'd posit that Wilson wanted to maintain his distance from the CIA, and not signing a confidentiality agreement was a means of doing so. I'd also posit that the CIA trusted Wilson's discretion. To me, that's a plausible explanation.

Sure, but is it the *only* explanation? And just becasue Wilson wanted to keep his distance, why would the CIA agree?

The key thing to remember is that the law requires that the accused knows that "the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States". That's very vague....

This statute is essentially unlitigated, so we wonder about the source of his expertise, which is on repeated display in the comments that follow.

[TM]

Anon Lib has a fair point about Vallely.

My thoughts about Valely are these:

(a) he reminds me of Admiral Schachte, who came out of the woodwork to take an unverifiable shot at Kerry during Swift Boat Summer.

(b) he makes me think of Jack Nicholson from "A Few Good Men", and here is why - I noticed some hyperventilating on lefty comment boards about how Fitzgerald was going to haul Vallely in front of a grand jury and rattle his, uhh, medals.

But I don't think Vallely has any fear of Fitzgerald, or perjury charges, at all. None. Zero. I mean, look at his resume - he ate lunch three hundred yards from men trained to kill him, and we think he is going to be scared when Fitzgerald shows up in his nice Harvard suit...

Anyway, in this specific case, Vallely is asserting a "he said she said" that can't lead to charges.

I find this a bit spooky, in an "above the law" sort of way.

[TM]

Also, I am going to post this later (the "to-do" list is not shrinking, but U had a lightbulb go off (this is a bi-annual event, so I am quite excited).

Based on the recent gerecht WSJ article, Plame's "cover" was never serious - these are "don't ask, don't tell" plausible deniability covers.

So, the sloppy tradecraft is irrelevant - any agency that cared knew she was "covert".

However, Novak publishing bothered the CIA, because they lose plausibile deniability - now the other agencies can't pretned they don't know they have been harboring a CIA operative, and the embarrassment spreads.

[Dwilkers]

I gave up on reading p.luk's stuff in this thread when he started lecturing on Occam's razor, after having twisted himself into a pretzel to come to the conclusion that even Andrea Mitchel didn't really mean that Plame's status was common knowledge, and that anyone that says it is a "wingnut". Sometimes its just pointless to debate this sort of thing with some people, that is, to engage in debate on points so obvious is to drag yourself into an argument over the color of the sky with someone that argues it is red. Best to just let them babble on.

Put briefly, in p.luk's world an application of simple logic tells him that everybody that says Plame's status was known is lying except His Excellency The Ambassador Joseph Wilson IV - a PROVEN liar - , and anyone that weighs their claims and is trouble by them is a wingnut lunatic.

Occam's Razor indeed.

[Dwilkers]

"Anon Lib has a fair point about Vallely."

Perhaps. Its hard for me to judge what Vallely has said. As far as I can recall I have never seen the guy on TV and I don't have much of an idea whether he is credible in any way.

Speaking for myself though, Vallely's little revelation is only one drop in a very full bucket. Take it out and you've still got a lot of water.

I can easily imagine why Wilson would think its important to puff up to Vallely in a green room when he doesn't think he needs to do it to his neighbors. Wilson is a sick puppy with a diseased ego, a self-important prick. I don't find it particularly curious that he would be validating himself by name dropping his wife when in the presence of a retired general - a status of some personal accomplishment.

Or maybe Vallely is lying and Wilson is telling the truth. Wilson must tell the truth at least SOME of the time. Right?

[TM]

I can easily imagine why Wilson would think its important to puff up to Vallely in a green room when he doesn't think he needs to do it to his neighbors.

Good point (under this blue sky, anyway).

And, this may reflect poorly on me, but - one of my four immediate neighbors works in finance at a European bank, and the other three (two hubbys and the remaining wife) do something or other with various corporations whose identity I have never learned (or remembered - the next time I hear it, it will be as if it was the first time).

OTOH, their kids are here all the time, and I am much better informed on child-related issues.

And the obvious problem with my "don't ask, don't tell" covert status theory - the CIA still should have quashed Novak. I continue to struggle with that, although the "pure screw-up" notion has lots of appeal.

[kim]

As with some confabulators, Joe can no longer tell when he is lying and when he is not. It might be very interesting to see a psychologist's report on his memory.
=================================================

[kim]

They're embarrassed that the putsch failed, not over tradecraft.
=================================================

[TP]

Actually, Fitz's indictment says her identity was not widely known outside of the intelligence community. Could one consider Vallely a member of the intelligence community? Muffin might be another story.

Also, in his press conference, Fitz referred to the FBI visit to the Wilson neighborhood as a last minute flurry of attention. Perhaps it was attention to detail. One might wonder if he had not done some last minute questioning of Joe about his wife's status--not wanting to be embarrasssed by some pain-in-the-ass neighbor telling the press an hour after the indictment that everybody knew she was CIA. He already knew he wasn't going to make any indictments on the outing, but wanted to make sure the preliminary info in the indictment would stand up to at least cursory scrutiny. The visit didn't have anything to do with the substance of the indictment.

Also, spending a day watching p.luk's posts on this thread was kind of like watching a terrier have a day-long go at a tar baby. One had to keep his distance from fear of tar splatter.

[p.lukasiak]

Andrea Mitchell (Oct 3, 2003), Martin Peretz (New Republic), Hugh Sidey (TIME) - wingnuts all. Nick Kristof has not come forward, but his denial that Plame was ever a source is quite oddly worded.

nice try Tom, but (and aside from the fact that Peretz is a wingnut), all that Mitchell, Peretz, and Sidey reported was that "everybody knew" Plame was CIA. Mitchell subsequently disavowed any PERSONAL knowledge that Plame was CIA. Neither Peretz nor Sidey said that they knew. The only people claiming prior knowledge are wingnuts like Cliff May and (now) Paul Vallely.

So its not true that "everybody knew". Mitchell didn't know, Russert didn't know, Miller didn't know, Pincus didn't know, Cooper didn't know...... so who, exactly is "everybody".

Who knew there was so much case law on this point? Victoria Toensing, who helped draft the statute, said that "served" meant "stationed". Well, that is only her opinion, too.

laws are interpreted by judges based on their texts and (occasionally) legislative histories --- not the opinions of partisan staffers who had a hand in drafting the text of the statute in question.

Unlikely? Sure. Impossible? Let p.luk tell us!

gee TM, did I say "impossible", no? I said that there was no reason to suspect that Russert was lying, and that he had no motive.

But after reflecting on the matter, perhaps I should have included the "paranoid delusional partisan windbag" exception -- but then, I thought the word "reason" implied rationality.

One fine day Mr. P will address the "sloppy tradecraft" argument, as well as Kristof's reporting that she was outed in 1994 and her networks wound down, and explain how likely it was that Ms. Plame's status and Brew-Jen cover would hold up after her hubby announced he was a CIA consultant.

wow TM, you just make stuff up out of whole cloth, don't you? Kristof did not report that Plame was "outed" in 1994, he reported that the CIA considered it possible that Aldrich Ames did "out" her, and took precautionary steps in case that was true.

No wonder you're losing your credibility with the "reality based" crowd.

As for your concernt that Plame's cover would be blown because Wilson included CIA consulting in his "resume" --- please get real. Wilson was not only a diplomat, but a member of Clinton's National Security team. Why anyone would suspect Wilson's wife of being CIA because HE had worked for Clinton is beyond me, and was using that experience to promote his own consulting business.

Maybe in the world of the paranoid delusional partisan gasbag, a respected diplomat who writes about his experiences in Niger would launch a full=scale investigation of every member of Joe Wilson's family! Hey, I bet that the NY Times piece prompted investigations by foreign intelligence services of his parents, his siblings, too! In fact, I have it on good authority that his grandfather's dog was actually a CIA bitch, who seduced Alger Hiss's beagle -- and it was actually this dog who dug up the pumpkin papers while burying a bone after a visit to Hiss's farm!

Oh, and the CIA did try to stop the publication of Novak's piece. The problem is that the CIA can't go to Novak and say "Don't publish this piece because Valerie Plame is a covert agent" -- and ever since the Pentagon Papers, the CIA can't get an injunction to prevent the publication of classified materials.

And if the CIA was intent on leaking info that hurt the White House?

Oh, I get it. Its all a big CIA plot! In order to "hurt the White House" the CIA would compromise everyone associated with the cover that Valerie Plame had used.

This is not to say that the Agency didn't defend itself against the White House's campaign to lay the blame for the failure to find WMDs on the CIA. (For an example of that campaign, read Miller's account--IIRC, its the June 23 conversation -- of her conversation with Libby where he lies by saying that the CIA never tried to keep questionable intelligence from being disseminated by the White House).

But the idea that Joe Wilson's column was part of that response AND that the CIA deliberately compromised a covert intelligence network in order to allow Wilson's column to be published is pure paranoid partisan gasbag delusion.

We have remarked on other occasions about his touching concern for the credibility of others.

I cited Millers notes that said "wife works at Winpac". One of your dittoheads flamed me, telling me I was wrong and that the notes said "wife works at bureau?" I proved her wrong, and admonished her for flaming me without knowing what she was talking about.

None of which you mention, of course. Taking comments out of context (and promoting paranoid delusional partisan fantasies) seems to be the only response you can provide, TM....

A troubling failure of imagination, or unwillingness to read spy novels.

....I guess this explains why the left calls itself "the reality based community". The CIA "plants a seed" in February 2002 --- it thinks that they might just need Joe Wilson in the future to defend themselves against accusations of intelligence failures because of what appeared in an NIE that wouldn't even be contemplated, let alone written, until months later. The CIA knows that there are no WMDs in Iraq, but plans on telling Bush there are --- and knows that the notoriously anti-Saddam Joe Wilson will be a perfect vehicle to execute their dastardly plot when the moment is right.

Do I not read enough spy novels, or did you think "Austen Powers: Goldmember" was a documentary?

Sure, but is it the *only* explanation? And just becasue Wilson wanted to keep his distance, why would the CIA agree?

wow! Here TM tries to raise questions as if I said that the "explanation" I gave was the only one possible. Of course, I had made it clear that there was no "obvious" reason why the CIA would not make Wilson sign a confidentiality agreement, and merely offered a "plausible" one. And I answered the question that TM implies I didn't answer (:Why would the CIA agree?") by positing that the CIA trusted in Wilson's discretion (he had, after all, been a member of Clintons NSC team.)

I offered a "plausible" theory -- one that does not rely on "spy novel" logic and amazing prescience on the part of the CIA. I'm happy to entertain any other "plausible" theory --- that does not, however, include the product of the fevered imaginations of paranoid delusional partisan gasbags.

This is the "quality" of TM's "arguments". When I admit that there is no obvious explanation, he implies that I'm saying its the only possible explanation. And he implies that my theory is flawed because it didn't address the CIA's motives -- which I had done.

This statute is essentially unlitigated, so we wonder about the source of his expertise, which is on repeated display in the comments that follow.

You don't have to be a lawyer to understand the Rules of Statutory Construction. The first rule is that the text of a statute is the primary source for interpreting that statute. So, it doesn't take an expert to say that 'that's very vague' as to what "affirmative measures" means after quoting directly from the text, since "affirmative measures" are not defined in the text of the statute.

Another rule of statutory consturction is that you cannot interpret the text in a way that renders the law absurd or meaningless. In this case, the law only indirectly requires that "affirmative measures" be taken -- the requirement is that the person accused of the crime be aware that (undefined) "affirmative measures" were taken. And the law requires ONLY an awareness of "affirmative measures".

Nevertheless, the "other side" is arguing that "affirmative measures" actually is a reference to the effective of the totality of all measures taken (and not taken) to maintain an agent's cover. That's certainly not in the text itself, nor have I been able to find a reference to this "totality of circumstances" in its legislative history.

(Goldwater did want to make sure that people were not prosecuted for "outing" covert agents that the CIA was making no effort to keep covert, but that's about it as far as I can tell. And Goldwater was abundantly clear about the intent of the statute, when he wrote "The act sends out a clear signal that U.S. intelligence officers will no longer be fair game for those members of their own society who wish to take issue with the existence of CIA or find other motives for making these unauthorized disclosures.")

This blog is awash with "legal" theories that make absolutely no sense -- and that show little understanding of how "the law" works. When your primary authority on legal matters is someone who thinks that a judge would allow a congressional staffer to appear as a fact witness to tell him what a statute means -- and then cites a pleading to the Supreme Court that contains a footnote to an article by the legislative sponsor of the law in question in that particular case as having a bearing on the question of whether congressional staffers would be called as witnesses in a trial to explain a law --- well, you ain't talking Oliver Wendell Holmes here.

[p.lukasiak]

Based on the recent gerecht WSJ article, Plame's "cover" was never serious - these are "don't ask, don't tell" plausible deniability covers.

it was an op-ed, not an "article" -- i.e. it didn't come out of the (respected) WSJ newsroom, it came out of the (disreputable) WSJ editorial offices.

And Gerecht's argument is that no one is actually "covert" in the CIA. I'd like to challenge that assertion by asking Gerecht to publish the names of all of the "listed as covert" agents that he knows of, since it wouldn't damage National Security.

Hell, if we follow Gerecht's 'logic', since the security services in the countries where the CIA has its secret gulag probably know about those prisons too.... so there was no harm done when the Washington Post disclosed their existence.

Of course, the argument is that we are keeping the secret from the terrorists, not from the governments that are hosting the prisons. And that same argument applies to Valerie Plame, who was (reportedly) involved in keeping nuclear secrets (and materials) out of the hands of terrorists.

[Lion]

I note that, while P Luk goes on at exhaustive length, he does not address the fundamental issue that the prosecutor, after two years of investigative work, has brought no charge that the IIPA was violated. One can flail about as much as one likes about "affirmative measures" and other elements of the crime, but the crime has not been charged, and Mr. Libby remains innocent of it, and will remain so forevermore.

[p.lukasiak]

I note that, while P Luk goes on at exhaustive length, he does not address the fundamental issue that the prosecutor, after two years of investigative work, has brought no charge that the IIPA was violated.

I've already addressed that question twice here, but since you have accused me of not doing so, I'll try it again....

In short, although there was sufficient evidence to meet the "probable cause" standard necessary for the indictment, the evidence does not meet the "beyond a reasonable doubt" standard necessary for conviction, because the charge would be based on a single conversation with Cheney that Libby has sworn under oath that he forgot about -- and some other evidence that could be used to support the "I forgot that conversation" claim. An IIPA charge would be considered the "central" charge of the indictment, and juries are less likely to convict on lying and obstruction charges when they acquit on the central charge. So FitzG went with the cases he could prove "beyond a reasonable doubt".

One can flail about as much as one likes about "affirmative measures" and other elements of the crime, but the crime has not been charged, and Mr. Libby remains innocent of it, and will remain so forevermore.

I'm sure you didn't mean to exclude the phrase "in the eyes of the law" when you declared Libby's innocence, because I'm sure you know that people commit criminal acts all the time without being charged -- and the lack of charges does not mean the crime did not occur, or that the perpetrator of the crime didn't do it.

[kim]

So far, is Joe innocent in the eyes of the law, and if so, is he innocent?
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[Lion]

I mean that he is innocent--period. If you disagree, prove it beyond a reasonable doubt, and be sure that each person whose assertions you cite is subject to cross. That's the way it works. Tough luck for you, old man.

[Lion]

As an addendum to my assertion that Mr. Libby is innocent of any violation of the IIAP, I would point out that we have all seen that Mr. Fitzgerald is not at all averse to the gratuitous allegation of elements of crimes which he does not charge. See, e.g. the allegation that Mr. Libby was subject to 18 USC Section 793 (not charged). So, too, with his allegation that Ms. Plame's status was covert, and that it was not widely known to be covert. It seems very clear that if Mr. Fitzgerald had evidence ("probable cause" or otherwise)that the United States was taking affirmative measures to conceal her status, he would have said so; he didn't. If he had evidence that Mr. Libby was aware of such affirmative measures, he would have said so. He didn't. If he had evidence that Ms. Plame had been serving outside the United States within the five years immediately preceding the alleged disclosure, he would have said so. He didn't. Those who were hoping, if not praying, for a homerun from this investigation have got themselves a Texas League single. It seems to be causing some of them a great deal of anguish.

[r flanagan]

We can't conclude that Fitz would have "said so" if he had evidence that Plame's status met various requirements of the IIPA .

He wasn't bringing a charge that the IIPA had been violated which means that at a minimum he was going to say less about that
subject than about the matters on which
he was charging Libby.

The fact that Fitz made some gratuitious
remarks doesn't necessarily mean that that any subject on which he failed to make a gratuitous remark must be one on which he had no evidence.

[kim]

Sorry, Old Fleabag, you thought I was asking you if Libby were innocent, and I was asking p.l. if Joe were innocent.

There is a wonderful scene in one of P. O'Brian's time travel stories of the master and commander being smuggled through adverse territory masquerading as a trained lion. Just how he filled out that lionskin in feline fashion must have been left to the imagination of his viewers. Another thrill is reading P's prose when he is translating.

Why so obscure? I'm trying to explain that it is not your fault that you misconstrue what I say.
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[kim]

It appears to me that the batter loafed out the Texas League single and is about to be put out at first by the center fielder.
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