The Case Against Libby

John Dickerson at Slate  walks through Libby's maze:

Two witnesses against [Libby] may be his former colleagues Karl Rove and Ari Fleischer. Based on what can be gleaned from the indictment and elsewhere, these two aides treated news of Plame's employment as if it were radioactive before it ever became a public issue. Their caution suggests that at the upper levels of the administration not only was Wilson's wife's identity known, but that it was also known that it was not for public distribution.

But did Libby conspire to leak this, or just paste together a cover story after the fact?  Jeralyn Merritt seems to be saying that "The fact that we didn't [see a conspiracy charge] seems to indicate that Fitzgerald doesn't believe this was a real plan, only a plan Libby made up for the grand jury."

I'll say this - if I had launched a plan to leak Ms. Plame's name with reporter gossip as the cover, I would have made sure to get some reporter gossip. 

And what conspiratorial bright light hit on Tim Russert as the key alibi witness in what may come down to a "he said/he said" dispute about whether Russert mentioned Wilson's wife to Libby?  C'mon - in my conspiracy, I get Chris Matthews on the phone, ask him what he hears about the Wilson trip, and watch a few innings of the ball game while he rattles on.  Later, I swear he outed Ms. Plame to me, and who is going to believe Matthews?  Chris is just now finding out that Tenet debunked the Wilson trip in July 2003 - good luck putting him on the stand.

The Dinocrat has a good stab at a dot-connector attempting to explain whatever passed for Libby's "plan".  Running out the clock past the election is a key plot point.

Our own view of Fitzgerald's theory is coming together, and we are modestly optimistic that we will have something soon; the road map for Libby's defense has resisted development.

Comments

[MeTooThen]

TM,

Ace has an interesting defense for Mr. Libby, materiality.

Here

This sounds about as right as anything, for it gets to the matter of inent to commit a crime.

As to what crime does not seem to have been made clear, and therefore, the notion of criminal intent doesn't seem to make sense.

Damn Evil NeoCons!

And their ZioNazi Masters, too!

Just sayin'.

[MeTooThen]

All,

Ouch, bad link.

Here, go to Ace's and read it for yourselves.

Here

[Anonymous Liberal]

I think all of the leakers (Libby, Rove, Mr. X) knew or suspected that Plame's identity was classified. That's why they didn't just come out an say it. That's why Ari Fleischer spent the whole week trying to put out the media fire that Wilson's op-ed created but at no point revealed (at least on the record) what he knew about Wilson's wife's involvement. He had to have known that that particular piece of information was off limits. Nothing else makes sense. And if Ari knew, it's very hard to believe that Libby and Rove did not.

That said, I don't think any of these guys realized that discussing Plame could potentially violate the IIPA or Espionage Act. In other words, they knew that revealing classified information was bad, but they didn't know it was potentially felonious.

When the investigation started, I think they panicked and came up with cover stories. Libby was the most involved in this, so his cover story was the easiest to expose. I think Fitzgerald strongly suspects that Rove's story was bogus too, but he has less evidence to work with. Rove tended to omit information rather than fabricate false information. And what he did say was less specific than what Libby said. That means that any false statement case against Rove will be much harded to prove. Fitzgerald's a conservative prosecutor and he only wants to charge what he is absolutely sure he can win.

[Appalled Moderate]

Ace's argument is the same old "Plame wasn't really covert" stuff we've been hearing since this thing came up. I believe Fitz's argument on Libby's perjury is that we can't tell that a law was violated because we simply do not know what we can believe of Libby's testimony.

So, sorry, I'm not buying materiality as a defense.

[BurbankErnie]

Hah! The Chrissy Matthews Defense! Kinda like the Twinkie Defense!! "He blabbered on so long I went Crazy!!"

[larwyn]

If Libby DOES NOT PLEA, I will be correct in my assumption that a public trial will get all out.

GW and his administration have nothing to fear from all getting out regarding CIA leak and the Wilsons history within the TENET
CIA - think 1999 trip by Joe.

One of my "dots" is the "early by weeks" of Bush nominating Bernanke to replace Mr. Andrea Mitchell to
FED Chair. He is giving Greenspan
a gracious way to step down sooner than the late Jan 2006 expiration of his term.

NBC'S Mrs. Andrea Mitchell Greenspan broadcast CLASSIFIED CIA
information regarding the Tenet request to Ashcroft's Justice Dept
to look into leak of Plame identity.

NBC'S Tim Russert played very large
part in furthering the tale and
coincidence of coincidences, his
wife is writer for Vanity Fair.

Libby is very smart and will be forever a major hero is he presses
for open public trial.

I am sure that pledges for his defense fund are rolling in.

If he pleas. I am wrong.

But I was absolutely correct within
3 days of the Miers nomination, that when Bush was advised Senate
didn't want Senate fight, he said
fine and gave them VOTER fight.

And he continues to give Abbas
just about everything he wants.
Recall the tactic of "giving enough
rope". We are going to be seeing
a lot of "hangings"

[MeTooThen]

AM,

No, that's not all Ace is saying.

Yes, first if Veronica Double-O-Flame's identity was not classifed, then whatever Libby said was immaterial in that it had no relation to any crime.

But in addition, he is saying that if Libby lied, his intent had to be for the purpose of advancing some criminal act.

That criminal act has not been clearly or explicity elucidated by the indictment.

Libby's behavior as to what he said has been outlined, but not in relation to a specific intent or criminal act.

I have no idea if this arguement re: materiality is correct, but it makes as much sense as anything else.

Just sayin'.

[boris]

I think I agree with larwyn.

Libby's strategery was: "If this fool is stupid enough to indict me for the gibberish I'm spinning, then he's dangerous and needs to be trapped"

Libby is like one of those counter measures employed by submarines and fighter planes to confuse homing torpedoes and heat seeking missles.

Hmmm ... heat seeking fitzle ... I like it.

[Sue]

Sen. Reid has invoked Rule 21 and shut down the senate for secret closed door meetings to discuss the war in Iraq (bad intel) and Libby.

Developing... ;)

[Rick Ballard]

Sue,

Maybe they're going to put him on double secret probation...

[boris]

Pretty sure Ace is on board with a claim I have made also:

Regardless of what some official declares is "classified", if it is not hidden and can't be hidden it's not secret.

Real world verses postmodern mumbo jumbo.

An official classification might be enough to engage the wheels of justice, but nobody should go to jail over an "open secret".

[J Mann]

Apropos of nothing, opinionjournal.com just purported to answer one of Tom's old mysteries.

According to Taranto, Andrea Mitchell admitted that Plame's name was well known to insider journalists on the October 3, 2003 "Capital Report" on CNBC.

[Sue]

Rick,

Don't know. But Reid is throwing a temper tantrum and there is nothing in the senate rules to prevent it. I told you guys they finally figured out Fitzgerald wasn't going to give them the trial they wanted. This is the first salvo...Frist needs to send a message back...bring it on... ;)

[Lesley]

The question has been asked: does anyone remember the name of VP Al Gore's Chief of Staff? I was curious and looked it up: Roy Neel.

"Neel also looks back fondly to the days when Al Gore had just been elected to Congress in the late 1970s and they would return to Tennessee for town meetings. “We got up one morning and got a dozen Krispy Kreme donuts and milk. [Gore] ate all of them within two stops. We had a lot of fun in Tennessee. A lot of it centered on eating.”

Kennedy School alumni talk about the role of chief of staff

[boris]

Thanks JM ! Way to go Taranto !

The creepy geeks and jokers just lost their # 1 talking point.

[boris]

Scroll down to Joe Wilson's 'Secret' Wife

[JohnH]

Taranto quotes not only Andrea Mitchell but also Hugh Sidey for the proposition that it was known in DC media circles that Wilson's wife was CIA. Now, that means that Russert should have known it. So if Libby's defense is that he really did discuss it with Russert, then it is word-against-word (ditto Cooper), and the only other problem for Libby is the very ambiguous testimony quoted in the indictment that seems to have him saying that he told the GJ that he really did not know about Valerie until told by Russert. But if reporters had known for some time about Valerie, then who's to say that Libby didn't actually learn of her from reporters at an even earlier date? What we do not have is a clear question in the testimony that goes "When did you first learn that Wilson's wife worked at the CIA?" The indictment just cites facts learned from documents and CIA people about telling Cheney etc. So it is far from clear what Libby will be able to say or who knew what when.

[Creepy Dude]

Down boy. The fact changes nothing as far as Libby (and Cheney) are concerned, and, so far all it is another right winger telling me Andrea Mitchell said it again with no proof ("transcript not publicly available"). Taranto just changes the name of the show.

[boris]

Sounds like a river in Egypt.

[Creepy Dude]

Oh and JohnH-apparently Sidey forgot to tell his Time colleague Cooper who unequivocally said on TV just yesterday that he first learned of Wilson's wife from Rove.

If only Libby had been smart enough to talk to reporters who already knew about Plame...

[Creepy Dude]

Sorry Boris. My favorite talking point is this: it's me and the Department of Justice vs. you and Taranto. Good luck.

[Col Klink]

I love the smell of Liberal desperation in the morning!

[boris]

Poor dude, our Libby counter measure broke your heat seeking fitzle.

[Cecil Turner]

That said, I don't think any of these guys realized that discussing Plame could potentially violate the IIPA or Espionage Act. In other words, they knew that revealing classified information was bad, but they didn't know it was potentially felonious.

Sounds about right to me. Might not have been focused on her identity, but at least the conversation about Wilson's selection process at CPD was classified at the time. I also agree with your take about it likely being a violation (though not charged), and hence the statements are material, etc. However, if Plame's identity isn't a hyper-secret (and I think it isn't), then this is a garden-variety leak of not terribly important classified information. That's a relatively common occurrence in Washington, and I think a strong case could be made that Wilson had already done exactly the same thing from the opposite direction. I think any jury that looks through all the facts is going to perceive a basic fairness issue (of the type that commonly produces hung juries or acquittals).

[!]

RE: Libby's defense

If Libby fights the charges and is found guilty or if Libby just pleads guilty, does that close the case on any other potential charges against anyone else? Or, does it open the door wider?

When I get a chance, I'm going to research what Fitzgerald did in relation to investigation into an Illinois state agency scandal.
Apparently, he started small and eventually a lot of others, including the either then-current or then-former governor Ryan, were indicted on other charges stemming from the initial investigation.

[cathyf]

I asked this over on another thread, but no one answered (I think it was pretty dead by then...)

Does anyone know what the form of the evidence is for the false statements which the indictment alleges Libby made to the FBI? Would those conversations have been tape recorded? Would there have been a professional stenographer present making a transcript? Or would this be the FBI agents' notes?

cathy :-)

[clarice]

Some are excerpts from the gj testimony--others seem to be from statements made to FBI agents though what form those statements were made is not apparent.

[Geek, Esq.]

Ace is just regurgitating the same RNC talknig points.

Oh, and he's clueless on intent.

[Geek, Esq.]

Sounds about right to me. Might not have been focused on her identity, but at least the conversation about Wilson's selection process at CPD was classified at the time.

I believe that's the final plank Fitzgerald is trying to determine. Scooter's obfuscations delayed and continue to delay this.

I also agree with your take about it likely being a violation (though not charged), and hence the statements are material, etc.

We're agreeing so far.

However, if Plame's identity isn't a hyper-secret (and I think it isn't), then this is a garden-variety leak of not terribly important classified information.

And our agreement ends. The identity of a CIA agent is something that needs to be taken seriously, and there should be an extra-strong presumption against discussing this stuff outside the magic circle.

That's a relatively common occurrence in Washington, and I think a strong case could be made that Wilson had already done exactly the same thing from the opposite direction.

I don't see the evidence for the latter statement, and I don't recall the WH ever outing an intelligence operative before.

I think any jury that looks through all the facts is going to perceive a basic fairness issue (of the type that commonly produces hung juries or acquittals).

Wait, he was guilty of the underlying offense AND he's guilty of perjury, and it would still be unfair to convict him?

[Joe, Sports Ill.]

Based on his comments, I am guessing Geek gets his title on the basis of his magazine subscriptions.

[boris]

Plame, regardless of "common knowledge", was neither covert nor classified in any real sense. Fitz can try and get a conviction on official classification and letter of some law, but it doesn't look like he's even going for that.

The idea that a full confession from Libby is all that's standing between Fitz and a finding of criminal activity is preposterous.

So ... No criminal activity in reality given Plame's "open secret" ... and Libby's so called lies are far to nebulous to convince anybody. Like I said, by design or not Libby was the perfect counter measure for the narrow minded conspira-seeking fitzle.

[cathyf]

Some are excerpts from the gj testimony--others seem to be from statements made to FBI agents though what form those statements were made is not apparent.

One other question, which Clarice already seems to have the same answer I have -- has Fitzgerald told us when these allegedly-false statements made by Libby were made? If the statements were made very early, then an obstructive outcome is plausible. But the later the statements were made the less likely that reasonable people should believe that the investigators would take them at face value.

(What's that old saying, "text without context is pretext" ? I think that JBG is a sola scriptura fundamentalist, or at least he sure does argue like one.)

cathy :-)

[Cecil Turner]

I don't see the evidence for the latter statement . . .

Apparently CPD felt they had to give Wilson an “operational clearance” for "Secret" information for his mission. He writes a nice, inclusive trip report for the Times. The INR memo background paragraph was reportedly "Secret" (which he discussed, though you could argue that since he lied about it, he didn't divulge anything sensitive). The rest of the memo was reportedly Top Secret, which leads me to believe the details of the mission were classified.

. . . and I don't recall the WH ever outing an intelligence operative before.

Looks to me like the "outing" was incidental to correcting the record on who decided to send Wilson. If she'd actually been covert, or the outing had been the goal, I might agree with you. If not, again, it's hard to see that as anything more than a garden-variety leak. (Disagreement noted.)

Wait, he was guilty of the underlying offense AND he's guilty of perjury, and it would still be unfair to convict him?

Wilson looks to be guilty of the underlying offense as well (and since Fitz didn't charge it against Libby, it's not terribly pertinent). The perjury is either he said/he-she said or state of mind. Neither are cut-and-dried, which gives an easy conscience sop for someone looking to let him off. If Libby were other than a shyster lawyer for a politician, I'd give long odds. As it is . . .?

[jukeboxgrad]

!: "When I get a chance, I'm going to research what Fitzgerald did in relation to investigation into an Illinois state agency scandal."

Let me help you get started. I think anyone looking for insight into Fitz's current behavior would be well-advised to look at the matter of George Ryan, former governor of Illinois, who Fitz charged with 18 counts of corruption. Ryan faces up to 95 years in prison. His trial started last month.

When Fitz indicted Ryan in 2003, it was "the culmination of a five-year investigation that [has] produced 59 convictions" (link).

I think a good central resource on the Ryan matter is here.

More on Ryan's indictment here (I don't know why this article says 22 counts, whereas elsewhere it's reported as 18 counts).

I think what the Ryan matter tells us about Fitz is that he is incredibly patient and methodical. It seems his MO is to get people at the bottom to flip, and then he slowly moves up the totem pole until he gets to the very top. This is reflected in the fact that on the road to nailing Gov. Ryan, there were 59 other convictions.

Note how Fitz started small and expanded: "It was not opened up as an investigation of George Ryan, it was opened up as an investigation of licenses for bribes at the secretary of state's office" (link). It's interesting to note that on the road to nailing Ryan, Fitz first nailed someone who had been Ryan's chief of staff.

I can't totally pin this down, but it seems that Fitz was in the habit of using terms like "Official A" to refer to people he had not yet indicted, in the period prior to the time he indicted them. I'm not sure I'm following all the details correctly, but I think examples are described here and here.

In my opinion, Rove being called "Official A" by Fitz is not a hopeful sign for Rove. Note that Fitz refers to other officials by their ordinary titles.

Some of the above is derived from here, an article which has a number of very interesting observations.

[jukeboxgrad]

MeToo: "if Veronica Double-O-Flame's identity was not classifed"

Fitz said that Plame's identity as a CIA officer was classified information. Oh well. So much for that line of so-called reasoning.

Also, keep in mind that Cheney and Libby had good reasons to understand that her identity was classified information. Cheney told Libby not just that Plame worked at CIA, but that Plame worked in the Counterproliferation Division. This is part of the Directorate of Operations. This is the clandestine branch of the CIA: "The Directorate of Operations is responsible for the clandestine collection of foreign intelligence" (link).

[jukeboxgrad]

Boris: "If this fool is stupid enough to indict me for the gibberish I'm spinning"

I'm glad you're acknowledging that Libby was spinning gibberish. I thought you'd come around.

"nobody should go to jail over an 'open secret'."

Since it was an open secret, it's mighty surprising that the numerous people defending Rove et al are having such a hard time producing anyone who can make a credible claim to have been in first-hand possession of this information pre-Novak. I'd be more inclined to think Andrea Mitchell really knew if she told us where she heard it and when.

"The creepy geeks and jokers just lost their # 1 talking point."

I see what your new talking point is: "Andrea Mitchell said she knew; that means we might as well let the whole world know."

"Plame, regardless of 'common knowledge', was neither covert nor classified in any real sense."

English translation: "even though Fitz said she's classified, and even though a bunch of judges seemed to agree, I claim otherwise, so there."

"Libby's so called lies are far to nebulous to convince anybody"

With the significant exception, so far, of a certain grand jury.

[jukeboxgrad]

John: "the very ambiguous testimony quoted in the indictment"

There's nothing ambiguous about the following testimony: "all I had was this information that was coming in from the reporters ... all I had was that reporters are telling us that ... the only thing I had, I thought at the time, was what reporters are telling us."

"who's to say that Libby didn't actually learn of her from reporters at an even earlier date"

If such a thing happened, why didn't Libby tell Fitz?

Cecil: "this is a garden-variety leak of not terribly important classified information. That's a relatively common occurrence in Washington"

Let us know about the last time the classified identity of a CIA officer was outed in the press. Extra credit if their field of expertise was WMD. Double-extra credit if it happened during wartime. Super-double-triple credit if those two factors happened to coincide.

"I think a strong case could be made that Wilson had already done exactly the same thing from the opposite direction"

Please show any proof whatsover that Wilson outed Plame to anyone.

cathyf: "has Fitzgerald told us when these allegedly-false statements made by Libby were made?"

Yes. Libby started lying to the FBI on 10/14/03. Early enough for you?

[Truzenzuzex]

Appalled:

Ace's argument is the same old "Plame wasn't really covert" stuff we've been hearing since this thing came up. I believe Fitz's argument on Libby's perjury is that we can't tell that a law was violated because we simply do not know what we can believe of Libby's testimony.

Well, not really. His actual premise is this: You can't have a criminal coverup if there is no crime to cover up.

He is wrong about that. People appearing before a grand jury or giving interviews with the FBI are required to be honest by law. The materiality of a question that is related to the matter under investigation is presumed by the fact of the investigation.

Ace might have a point if Libby could prove that his alleged false statements were not material to the matter under investigation, but they clearly were. Any ultimate conclusion as to the criminality of the matter being investigated is not really relevant to the act of unlawful testimony.

Note that theoretically, Libby could have claimed Fifth Amendment protection on either the interviews or the GJ. However, he was required to waive his Fifth Amendment rights to keep his job (an interesting fact in and of itself - talk about coercion!).

Regardless, waive his Fifth Amendment privilege he did, and he must therefore testify truthfully or be subject to criminal charges. The prosecutor seems to think he was rather less than truthful.

[Rick Ballard]

You'd make Lanny Davis proud, juke.

Wait a sec - is that you Lanny?

[cathyf]

When I get a chance, I'm going to research what Fitzgerald did in relation to investigation into an Illinois state agency scandal.

Apparently, he started small and eventually a lot of others, including the either then-current or then-former governor Ryan, were indicted on other charges stemming from the initial investigation.

I can give you a little context on that. In Illinois, drivers licenses are issued by the Secretary of State (unlike most other states where they are issued by the state police.) A fundamental form of corruption in IL politics is to require state employees to raise money for their bosses' re-election campaigns. In the Sec of State's office, the scam was that employees would give unqualified people commercial (18-wheeler) drivers licenses in exchange for contributions to the Sec of State's campaign fund. One of those unqualified drivers caused a massive multi-vehicle pileup in California (I think with fatalities.) The most horrific case, though, was that another of the unqualified truckers rear-ended a van carrying a family of eight. The dad was able to drag the mom free seconds before the van exploded and killed all six children.

Patrick Fitzgerald was brought in by Peter Fitzgerald (no relation), our former senator. (He is one of the few politicians who I consider to be of impeccable integrity, and the only reason that Barak Obama is a senator from IL is that Peter Fitzgerald promised that he would serve only one term and he kept his promise.) Patrick Fitzgerald was brought in specifically to investigate and prosecute the people in the Sec of State's office responsible for the selling of drivers licenses, and since the Secretary of State, George Ryan, was governor at that point it is a very politically sensitive prosecution, and Patrick Fitzgerald was seen as the go-to guy when you need a prosecutor of impeccable integrity and reputation.

cathy :-)

[Cecil Turner]

Please show any proof whatsover that Wilson outed Plame to anyone.

Typical Juke. Now the only bit of classified information that matters is Plame's identity? And wartime makes Wilson's leaks less significant, and the White House's more heinous? Sorry, but the opposite is true.

[boris]

See ??? nobody wants to make the case that a conviction is even possible with Andrea, Cliff and others knowing about Valerie's CIA.

open secret = acquittal

[Truzenzuzex]

Geek:

And our agreement ends. The identity of a CIA agent is something that needs to be taken seriously, and there should be an extra-strong presumption against discussing this stuff outside the magic circle.

All classified information needs to be taken seriously. In a former life, I had access to classified information, and of course had to sign the relevant NDA at the end of my employment.

CIA identities are certainly no exception, but they are also not exceptional when it comes only to a standard classification. There is a specific law regarding agents who are actually "covert", but Fitzgerald is explicitly defining Plame's employment as classified, and cited law that applies to standard classifications rather than the IIPA (or whatever it is called).

If I had written a paper about the operation of a Los Angeles Class Naval nuclear submarine, I would have been subjected to the same laws as Libby according to the indictment narrative. My point is, don't try to make the disclosure appear more severe merely because it is related to intelligence - that is sophistry.

[cathyf]

I think what the Ryan matter tells us about Fitz is that he is incredibly patient and methodical. It seems his MO is to get people at the bottom to flip, and then he slowly moves up the totem pole until he gets to the very top. This is reflected in the fact that on the road to nailing Gov. Ryan, there were 59 other convictions.

I will point out that at least in IL that this particular behaviour that Fitzgerald exhibits is looked upon with some suspicion. Another standard form of corruption here is "logrolling perjury." It's not that we have evidence that there is anything nefarious in what Fitzgerald is doing, but we have another former prosecutor who used logrolling perjury to wrangle four terms as governor. I'm not saying that anyone in IL thinks Fitzgerald is corrupt, it's just that our 125 years of experience with all varieties of corruption has made us chronically unwilling to give anybody the benefit of the doubt in these things. The best you can get here is "trust, but verify."

There is also the criticism that Ryan is really being punished for the deaths of the six children, while people far more directly responsible (the truck driver, to start) get off without punishment.

cathy :-)

[cathyf]

I think that term for information which is classified but not secret is "misclassified." The canonical example being the CIA clerk who pulls out his rubber stamp, and whomp stamps "secret" on each and every page of the New York Times that was delivered to Langley that morning.

The espionage act appears to have a safe harbor for those who divulge information which is classified but shouldn't have been, since it explicitly defines the characteristics of the protected information in the act itself, and it's about harming national security, not merely offending bureaucratic categorizers. Certainly there is an Executive Order that forbids divulging of classified data, whether misclassified or not. And the agreements signed when getting a security clearance are contracts, and also have no exceptions for misclassifications. But can anyone show a law, not an executive order, not a regulation, nor a contract, but a law which would be violated by divulging information which is classified but should not be?

cathy :-)

[jukeboxgrad]

Cecil: "which leads me to believe the details of the mission were classified."

You had said "Wilson had already done exactly the same thing from the opposite direction." I thought you meant "Wilson had leaked Plame." Now I guess what you mean is "Wilson leaked classified information about his trip."

There are a number of problems with this. First, I imagine you're right that at least certain details of Wilson's trip were classified. However, you're in no position to claim that what he said about his trip (in his famous oped, for example) included any of those details. You're also in no position to know whether or not he checked with the CIA first, in order to clarify parameters of what he could say.

But let's put all that aside for a moment, and assume you're right, that Wilson leaked classified details about his trip. Sorry, but even if you assume this, you are indulging in some of your patented exaggeration to characterize this as "exactly the same thing." Sketchy information about sipping tea in Niger, even if officially classified, is not in the same ballpark as outing the classified identity of a CIA officer.

On the contrary, such a leak by Wilson (details about his trip) is more like the garden-variety leaks that you call "a relatively common occurrence in Washington."

Aside from all that, let's recall the context of this claim you made: that such a leak by Wilson would influence the jury with regard to some concept of "basic fairness." Sorry, that's nonsense. Even if Wilson leaked details of his trip, that has no relevance to the question of Libby outing Plame and lying about it later.

If Wilson had leaked Plame, that would be less far afield, as far as relevance to Libby's situation. But any idea about Wilson leaking trip-details seems utterly irrelevant.

"Looks to me like the 'outing' was incidental to correcting the record on who decided to send Wilson."

If the White House couldn't figure out how to "correct[ing] the record" without messing with classified information, then they had an obligation to tolerate an uncorrected record.

If the case for war was so fragile that Wilson's dissent was considered a major threat, that indicates a problem with the case for war.

If Wilson's dissent was not considered a major threat, then all the more reason to understand that there was no reason to compromise classified information for the sake of "correcting the record."

By the way, how ironic that part of Rove's idea of "correcting the record" was to tell Cooper that Plame "authorized" Wilson's trip, even though there's no support for that claim.

"If she'd actually been covert"

Fitz says her identity as a CIA officer was classified information. This seems consistent with what Cheney told Libby, that Plame worked in the Counterproliferation Division, which is part of the Directorate of Operations, the clandestine branch of the CIA.

For some reason you and Fitz have reached contrary conclusions. What do you know that he doesn't?

"[if] the outing had been the goal"

It's hard to understand why mentioning Plame was considered highly material, if the goal was to convince the public that Bush's 16 words were well-founded. It was a WSJ reporter, oddly enough, who said: "That Ms. Plame recommended her husband doesn't undercut Mr. Wilson's credentials for the job of trying to figure out whether Saddam Hussein was seeking the raw material for a nuclear weapon in Africa."

Since it's hard to understand why mentioning Plame was considered so important (important enough to take the risk of Libby getting into the kind of trouble he's in), that tends to create the impression that outing her was indeed the goal.

There are all sorts of indications that Cheney/Libby had been at war with the CIA for a long time, and playing hardball with Plame would send a chilling, unambiguous message to other CIA folks who might have been considering standing up to WHIG in some manner.

"Wilson looks to be guilty of the underlying offense as well"

As I've explained, this is not a fair comparison, unless you want to argue that Wilson outed Plame.

"The perjury is [not] cut-and-dried"

Let us know how you explain away these statements: "all I had was this information that was coming in from the reporters ... all I had was that reporters are telling us that ... the only thing I had, I thought at the time, was what reporters are telling us."

Maybe you subscribe to Syl's two-heads-are-better-than-one hypothesis.

[MeTooThen]

JBG,

I'm not so sure.

Here, from the NeoCon-run Washington Post,

"The paragraph identifying her as the wife of former ambassador Joseph C. Wilson IV was clearly marked to show that it contained classified material at the "secret" level, two sources said. The CIA classifies as "secret" the names of officers whose identities are covert, according to former senior agency officials.

Anyone reading that paragraph should have been aware that it contained secret information, though that designation was not specifically attached to Plame's name and did not describe her status as covert, the sources said."

So you tell me, was Veronica-Double-O-Flame, of Who's Who and other Super-Duper-Top-Secret Documents name classified?

Further in the same article are some real mean and scary questions put to the BusHitler Cabal,

"Who in the Bush administration knew about Plame's CIA role? Did they know the agency was trying to protect her identity? And, who leaked it to the media?"

I suggest they ask the CIA.

Or Joseph Charles Wilson IV.

Just sayin'.

[Tollhouse]

I'm having a terrible sense of deja vu reading the comments.

[MeTooThen]

JBG,

If the case for war was so fragile that Wilson's dissent was considered a major threat, that indicates a problem with the case for war.

No, the case to depose a psychotic mass-murderer, rapist, and sadist, as well as kill or remove his two sons, who were equally bad, if not worse, who not only was responsible for killing more Muslims than any man alive, using chemical weapons on women and children, who committed two ecological disasters (setting the oil fields afire in Kuwait and spoiling the marshes), fought two wars with his neighbors, sponsored terrorists, launched missles into a third country, defied 12 years and 18 UN resolutions, was in violation of a surrender that he himself had signed, and spent billions on himself and his family while he murdered and brutalized his own people...

No, the case for war was pretty clear.

Rather, the problems the President had then, (and now, as evidenced by today's "closed door" Senate) were the reactionary, illiberal, and vicious attacks made against him by those who sought to prevent enfranchisement and liberty of the Iraqi people, in order to satisfy their own narcissism.

/rant off

[Sue]

MeTooThen,

It has everything to do with poll numbers. They were for the war before they were against the war.

[Cecil Turner]

Sorry, but even if you assume this, you are indulging in some of your patented exaggeration to characterize this as "exactly the same thing."

Yawn. Please read the previous sentence from that statement, characterizing the leak of Plame's name as "a garden-variety leak of not terribly important classified information." If you disagree with that point, have at it. If not, spare me the "patented exaggeration" nonsense pertaining to congruent garden variety leaks of classified information by Wilson.

If Wilson had leaked Plame, that would be less far afield . . .

Yeah, who was Kristof's other source, anyway? Cooper's? Miller's?

If the White House couldn't figure out how to "correct[ing] the record" without messing with classified information, then they had an obligation to tolerate an uncorrected record.

The same consideration applies to Wilson, and in my (not totally inexpert) opinion, he failed to meet it. The evidence is admittedly sketchy, but to this point, all discovery has been by the prosecutor. That is about to change.

Fitz says her identity as a CIA officer was classified information.

We've been here before. "Classified" does not equal "covert." If all you've got is "classified," why is that any more important than any other piece of classified information?

As I've explained, this is not a fair comparison, unless you want to argue that Wilson outed Plame.

Unless you can show Plame's identity was a particularly sensitive piece of information (which appears unsupportable), your explanation is a weak attempt to frame the debate to your advantage, and faulty.

[Rick Ballard]

Sue,

They were for it in Oct. '02 and against it after Nov. '02. That little poll taken in early Nov. 02 is the only one that counted. If you don't believe me, ask Hillary.

[stevesturm]

Tom; I've been working on Libby's defense. One, his supposed mistatements were not material to the investigation. Two, the bias of the witnesses against him. Three, it all depends on the meaning of 'learned her identity'. Full explanation here

And I also discount the threat that Fitzgerald is going to parade Cheney and Rove and Fleischer to the witness stand. Libby isn't disputing he knew of Plame from Cheney, et al, so Fitzgerald ought to keep that part simple... no testimony about shower curtains and parties.

[clarice]

Cathy, you're right context is very important and we don't know it. All we know is what's in those tiny snippets of the transcript which appear in the indictment (and the whisperings about the testimony of witnesses which is not particularly reliable..see Sidney Blumenthal Rule)..

steve--I'm heading in that direction, too.

I can see Libby's conversations with the reporters being material if he were accused of leaking. But he isn't. And as we've gone thru this a million times,Cooper seems to confirm Libby's recollection; Miller seems to have a completely unclear picture of the critical June 23 conversation; and Russert isn't a concrete reed.

Where and when Libby learned of Plame's status is relevant to what exactly if he didn't leak classified information.Put another way, even if one assumed(whichI don't) he intentionally lied to hide the source of his information, if the source was perfectly appropriate how do you get criminal intent sufficient to make out a perjury conviction ?

And as Mark Levin says the obstruction charge is flimsy--some obstruction when Libby came in in March and gave the one truly credible source in a series of office chitchat which he apparently didn't regard as dead certain. And when he turned over "copious notes" which apparently memorialized those chats.

Not certain though--so far I like Stromata's line by line the best analysis.

[Neo]

The one thing I have figured out in all of this is that Bob Novak's column won't get him in trouble for "false statements" as it appears to be spot on.

Libby on the other hand should claim that the "public side" of his official persona learned this from Russert, but that the "administration side" of his official persona (which constantly handles classified information) learned it from the CIA, VP et al. Further claiming that his official duties required him on a daily basis to jump back and forth from his "public" and "administration" personas. Further that he was referring to his "public" side with the grand jury.

[Creepy Dude]

Why doesn't Libby just grow some balls?

I detest Delay-but you have to admire his combativeness. As for perjury charges, here's Galloway reacting to the news:

"I am demanding prosecution, I am begging for prosecution," Mr Galloway told Sky News. "I am saying if I have lied under oath in front of the senate, that's a criminal offence. Charge me and I will head for the airport right now and face them down in court as I faced them down in the senate room.

"Because I publicly humiliated this lickspittle senator Norman Coleman - one of [George] Bush's righthand men - in the US senate in May, this sneak revenge attack has been launched over the past 24 hours."

If Libby and Cheney had some guts, and weren't always trying to hide out in dark corners like the vampires they are, the country would benefit.

[kim]

So do you think this Galloway evidence was forged by Chalabi?
====================================

[kim]

Galloway lost a debate in NYC right about then, too.

Lickspittle, huh? That stuff freezes up north.
=============================================

[Syl]

cathy

I just want some clarification on the Fitz/Ryan investigation. What some people are saying is that the investigation started at the bottom and moved on to the top. To keep hope alive. But what you're telling us is, though in essence still bottom-to-top, is that the investigation started in the office of the Secretary of State, who was Ryan, and it moved on all the way to the governor! Who was ALSO Ryan at the time of the investigation.

So it wasn't that the investigation originally 'aimed' at Official A then moved on to Official B because Official A and Official B were, in actuality, the same person.

Or did I read you wrong?

[Syl]

Cathy

"I think that term for information which is classified but not secret is "misclassified." The canonical example being the CIA clerk who pulls out his rubber stamp, and whomp stamps "secret" on each and every page of the New York Times that was delivered to Langley that morning."

Well, that's just wrong.

Just because a piece of classified info is out there in the public does not mean it therefore should not be classified. If you are an agent of a foreign government, say, you would see the info, say 'aha', then wonder if it was disinfo, a mistake, or the real thing.

You would need to find yourself some official confirmation before you'd dare act on it.

(In Libby's case, that someone outside of official circles knew mrs wilson was cia is not an excuse for him to then pass it along. He can't hear something from Miller then turn around and tell it to Russert. What he CAN do is upon hearing it from Miller, THEN hearing it from Russert, is to tell Russert 'I heard that too' or 'I didn't know that' or something equivalent.

But if the info IS out there circulating among reporters, it gives credence to some of Libby's testimony. And would be a defense of it.)

As to the New Times articles being classified. Well, doh. The press can hypocritically moan that someone outed a CIA agent. But the press gets lots of classified information into news stories. The appropriate agencies try to track it down. They assess any damage. If it's egregious enough they may refer the leak to justice. Most of the time they simply don't have enough people to do all that work so the articles remain in the classified bin until they can clear them out and possibly declassify the info.

But those agents are still looking for confirmation.

Same ol' story of not enough people to handle everything that needs to be taken care of.

"But can anyone show a law, not an executive order, not a regulation, nor a contract, but a law which would be violated by divulging information which is classified but should not be?"

This is just silly. The person divulging cannot know that the information divulged should not be classified. If charged, his guilt or innocence will be decided in court with due process. The damage assessment will be part of the evidence.

And, sorry if it's offensive to libertarian types, it is not the public's right to decide what should or should not be classified.

[kim]

I woke up this morning a 6 foot cockroach.
===========================================

[Syl]

And was accosted by a curious cat. The ostrich lifted his head from the sand and said 'Who?Me? But in the end I rolled over like a dead possum and nobody was the wiser.

[Syl]

My kafka kup runneth over. Three already. I'm flying like a blind goose!

[Paul]

Query. Why did CIA mentioned Wilson's wife in the memo at all? The only answers I can think of speak poorly of CIA.

[Syl]

Paul

Why not? If the question they were answering was 'who was that diplomat guy and why the hell did he go on a mission for CIA?'

[boris]

Sorry Syl, open secrets aren't secret.

The whole point of the CIA taking active measures to protect is keeping something "hidden". If it's not hidden it can't be secret.

The rule makers can make whatever rules they want and recite their penalties ad nauseum but there is a fundamental principle ... (crypto)

if it ain't hidden, it ain't secret

Postmodernism is a disease.

[boris]

And playing word games with the concepts has very real and very negative consequences. Not just in the rubber stamp CYA mode either

[clarice]

Oh, Boris--if you're going to be realistic..........

[boris]

Not for long.

[clarice]

Anyone subscribe to TNR? They have an argument up that Libby was overcharged.

[clarice]

I'm I the only one who thinks the Dow Jones case asking the Court to make public the redacted pp in the Fitz case to compel Miller's testimony may create problesm for him. Tatel (p.29 of his opinion) suggests that the affidavits alleged that Plame was a covert agent and that release of her name seriously jeopardized national security. Since Fitz never charged that, it appears that later developed facts never established that. If that were true, he had an obligation to notify the court, I think.

[clarice]

"I'm" should be "Am"

[clarice]

Oops, I forgot you can get a free peak at TNR--

Here are the key graphs:

The far from right wing publication, The New Republic argues that Libby's indictment is an indefensible prosecutorial excess which may well fail to secure a conviction:

[quote]It's more like criminalizing someone for arguing with the umpire's ball or strike call," says Harvard Law Professor and tnr contributor William J. Stuntz. Libby's alleged obstruction did not block Fitzgerald's ability to decide whether he violated the Intelligence Identities Protection Act; Fitzgerald could have concluded months ago that there was no violation. To breach the meticulously drafted law, a person with access to classified material who learns the identity of a covert agent has to intentionally disclose information identifying the agent, knowing that this information will blow the agent's cover and that the United States is taking affirmative measures to conceal the agent's identity.

In their exemplary brief filed in March 2005, a consortium of news organizations argued that there were serious questions about whether Plame qualified as a covert operative under the law. She was working at a desk job in Langley in July 2003, when Robert Novak first revealed her name, and arguably had not been assigned to duty outside the United States in the past five years, as the law requires. Moreover, there was little evidence that the government was taking "affirmative measures" to conceal her identity. Given the continuing uncertainty about Plame's status, it's unlikely that Libby both knew she was a covert agent in 2003 and disclosed her identity intentionally. (As Fitzgerald noted at his press conference, negligent or accidental disclosures are not illegal.) And, even if you assume the worst about Libby, it's hardly obvious that the question of who first told him that Plame worked for the CIA--was it, in other words, his government colleagues or NBC's Tim Russert?--would cast much light on whether he broke national security law.

In his press conference, Fitzgerald abruptly shifted gears when questioned about why he brought perjury and obstruction charges without finding an underlying violation of the law. He suggested that it didn't matter what law Libby violated. "When you do a criminal case, if you find a violation, it doesn't really, in the end, matter what statute you use if you vindicate the interest ... of the public in making sure he's held accountable," he said self-righteously. This is the usual last defense of the special prosecutor, but Fitzgerald suggested that he was doing what ordinary prosecutors do all the time. "When I got to Chicago, I knew the people before me had prosecuted false statements, obstruction, and perjury cases," he said at his press conference.

Contrary to Fitzgerald's claim, charges of perjury, obstruction, and false statements are relatively rare in federal criminal prosecutions. In 2004, federal prosecutors launched 80 perjury cases out of 70,397 criminal cases. "Ordinary prosecutors rarely indict people for perjury and more often indict people for false statements, but almost always as part of a broader indictment including more serious charges," Stuntz says. A review of Fitzgerald's record as an ordinary prosecutor suggests he has presided over more perjury, obstruction, and false statement cases than most. But, when he has issued indictments on those charges alone, it's usually been for bit players covering for people indicted for major crimes. It's special prosecutors who are known for indicting suspects for making false statements alone, without charging anyone with any other indictable offense.

The closest analogue to the Libby indictment is not, in fact, Starr's charges against Clinton. It's Starr's indictment of the now-forgotten Julie Hiatt Steele. The Steele indictment, the craziest of Starr's excesses, stemmed from his frustration at Clinton and his aides for trying to smear Kathleen Willey, who alleged that Clinton groped her in the Oval Office. Steele was Willey's former friend. She initially told Newsweek's Michael Isikoff that Willey had come to her house to tell her about the advance on the night it occurred, but then recanted, told Isikoff she had lied at Willey's request, and repeated this recantation to Starr's FBI agents and two grand juries. Starr, outrageously, indicted Steele on three counts of obstruction of justice and one count of making false statements to federal agents--much like Fitzgerald. In the end, Starr's last stand ended in a hung jury, a warning that Fitzgerald may have a hard time convicting Libby as well. [/quote] http://www.tnr.com/doc.mhtml?pt=PRB0mNEu2B41QGAwzVwwwi==