JustOneMinute

The Faith Based Community In Action!

Mike Isikoff of Newsweek sends the faith-based community into a rapture!

His news:

Newly released court papers could put holes in the defense of Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, in the Valerie Plame leak case. Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion.

Yup, that is what Fitzgerald "found", all right.  But if you trouble yourself to read the opinion (excerpted here), you will see that Fitzgerald did not trouble himself to actually provide any evidence to support his finding.  Emphasis added for the benefit of Mr. Isikoff:

As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years "--representations I trust the special counsel would not make without support.

We have a lot to cover.  Let's start with the definition of "covert":

Section 426.  Definitions

...

(4) The term ''covert agent'' means -
          (A) a present or retired officer or employee of an
        intelligence agency or a present or retired member of the Armed
        Forces assigned to duty with an intelligence agency -
            (i) whose identity as such an officer, employee, or member
          is classified information, and
            (ii) who is serving outside the United States or has within
          the last five years served outside the United States;

Now, Fitzgerald has determined that Ms. Plame "had carried out covert work overseas"; it may be a matter for the lawyers and the legislative history as to whether this statute means "served" in the context of a permanent overseas posting (and good luck finding some case law).

As to the CIA "making specific efforts to conceal her identity", well, no doubt they were.  However, allowing her husband to send up a red flare for the world's spychasers - I do consulting work for the CIA, but please don't look at my wife when you run my background - was pretty sloppy.

And the CIA press office belly-flopped with Bob Novak, who published despite their exhortations.  When the CIA wanted the WaPo to keep quiet on the names of the European countries hosting the secret CIA prisons, the WaPo complied - after the big guns were brought in).

When the Administration wanted to quash the NSA warrantless eavesdropping story, the NY Times sat on it for a year - after the big guns were brought in.

But after Bill Harlow of the CIA press office asked Bob Novak not to publish, there was no follow-up - no call from Tenet to Novak, no call from Tenet to Novak's publisher or editor.  Why not?  Why so shy at the CIA about protecting this critical secret?

And when the CIA filed a criminal referral, they only cited a disclosure of classified information; they did not mention covert agents or the IIPA.

Well, we are re-hashing old ground here (and new ground).

FWIW, my position has been that her status was classified, but that she probably was not eligible for protection under the Intelligence Identities Protection Act, i.e., not "covert".  But I have some free advice to the faith based community:

(a) Fitzgerald has said she is covert, so it must be so - he asked the CIA about her status, and they would never lie.  And no prosecutor ever exaggerated his case, the judges didn't review his evidence, Miller's attorneys opposed Fitzgerald's subpoena on very different grounds so this point was uncontested - relax and believe.

(b) Don't worry about the statute - if the prosecutor says "served" means "visited", well, he is the prosecutor, and we need hear no more.

(c) Don't worry about the fact that Libby's team has asked for info on Ms. Plame's status with the CIA in discovery, and Fitzgerald is being a bit balky about providing it.  He surely has the goods - he's the prosecutor.

Keep hope alive!

MORE:  Hmm, why is Mark Kleiman wandering off the reservation?  Nevertheless, I did enjoy this:

And undoubtedly Fitzgerald has determined what VPW's status actually was, since that's no harder than asking the CIA.

This is a beautiful thing, and I can just feel the love in the building - the CIA never spoofed anyone, right?  Nor would they.  Hey, just ask 'em!

The Fitzgerald Affidavit - Was Libby Novak's Source??

With a hat tip to Cecil Turner we find the Aug 2004 Fitzgerald affidavit in the Libby case posted at the Wall Street Journal (a 38 page .pdf file, also available here ).

Don't let it ruin your Super Sunday, but this looks like a target-rich document.  I have stalled on p. 3, totally captivated by this redaction:

Thus, Russert could not have then imparted that information to Libby. Moreover, Libby has given accounts of conversation with two other reporters - [redacted] and Matt Cooper of TIME magazine - that are contradicted in many respects by the testimony of [redacted] and Cooper.

What other reporter?  As of August 2004, Judy Miller had not testified; it is surely not Bob Woodward, nor, from context, could it be Tim Russert.

That would seem to leave

(a) Glenn Kessler of the WaPo, who said that he was not a player in this;

(b)  Walter Pincus, who said that he talked to Libby but received the Plame leak from someone else;

(c) Bob Novak himself;

(d) some other reporter who avoided a public legal brawl.

However, regarding choice (d) - in his recent letter, Fitzgerald asserted that only five reporters of whom he was aware received the Plame leak - Woodward, Miller, Pincus, Cooper, and Novak.

So, either the mystery reporter in the above redaction *denied* receiving the leak, even though Libby 'fessed up to it, or we should be able to pull a name from Fitzgerald's list.

Did Libby say he tipped Pincus?  Maybe.  But that would seem to help Libby, in a "failed memory" sort of way.  (And hey, did Woodward tell Pincus in June, or didn't he?  Woodward says yes, Pincus says no.)

Otherwise, we are pretty much left with Bob Novak, which poses a lot of questions - for starters, why is this not in the indictment?

Well, there may be an answer on p. 4 - puzzle solvers will love this, and I welcome some help.

And a caveat - DayQuil and .pdf files don't always mix well for me, so if there is an obvious answer, break it to me gently.  Thanks.

Clarice Feldman has looked through this, and I bet the EmptyWheel will follow up her interesting tour of the Tatel redactions.

Page four, and beyond!

MORE:  I disputed his arithmetic, but Adam Liptak counted subpoenas and public cases in July 2005 and said this:

Four reporters have testified in the investigation: Glenn Kessler and Walter Pincus of The Washington Post, Tim Russert of NBC News and Matthew Cooper of Time magazine.

...Mr. Novak has not said whether or how he cooperated in the investigation.

UPDATE:  A reporter's name is redacted a couple of times on pages 9 and 10 in a context where Novak just would not make sense - the passages suggest that the redacted chat happened on the weekend of July 11-12.

Worth remembering - Wilson's op-ed was published July 6.  By July 8, Novak was aware of the "Wilson and wife" story and told it to a stranger on the sidewalk (who, oddly, knew Wilson).  If Libby was Novak's first source Libby could not have sourced the Plame news to a chat with Russert on July 10.

Kessler of the WaPo spoke to Libby on July 12; Pincus received a leak from someone (he says not Libby) on July 12, but maybe Pincus spoke to Libby that weekend as well.

Or maybe Libby was a third source for Novak?  Novak's column hit the wire services on July 11, but perhaps Libby chatted with him over the weekend.

I'm having problems with all three of these alternatives.

GROAN: Jeralyn Merritt makes a good case that it is not Glenn Kessler; the Emptywheel (with commenters) makes the case that it is.  From Jeralyn, a key cite from the CJR:

Glenn Kessler of The Washington Post notes that while he did agree to talk to Patrick Fitzgerald, as this article says, he wants to make clear that the scope of the questioning was very limited. Kessler says he did not divulge what two conversations he had with I. Lewis Libby in July 2003 were about, but merely affirmed that the subjects of Valerie Plame, Joseph Wilson, and Wilson's trip to Niger had not come up.

Well.  Libby could have insisted that Kessler *did* bring it up.  But why drop that from the indictment?  Surely it fits the pattern of Libby's lies, buttresses Russert's story, and is as compelling a "he said, he said" as, say, Judy Miller (the new Gold Standard in Unlikely Witnesses).

Dare I guess?  Kessler covers State, from whence the Woodward leak may have come.  Fitzgerald didn't know this when he drew the indictment, but he surely knew just how limited his questioning of Kessler had been, and he may have wanted to avoid surprises on the stand.

Bonus Paranoia with Harmonic Convergence:

On the question of when did Fitzgerald learn about the Rove-Cooper talk, the EmptyWheel says this:

This supports--but does not by itself prove--that Fitzgerald did not yet know who Cooper's source was on August 27, 2004. Or, to put it differently, this suggests that Fitzgerald may not yet have had the Rove-Hadley email verifying that Rove was Cooper's source.

How about that?  The Anon Lib had convinced me of something similar - the second subpoena to Cooper did not seem to name a government official. suggesting that Fitzgerald invoked the "exhaustion of reasonable alternatives" clause in DoJ guidelines.

But on to the paranoia - there is a good hint in the new documents about why Fitzgerald may be so intrigued by Rove.  From an old WaPo:

Cooper and his attorneys were surprised that Fitzgerald agreed to ask Cooper questions only about his conversations with Libby, sources familiar with the investigation said.  The sources said Fitzgerald looked surprised in the August 2004 deposition when Cooper said it was he who brought up Wilson's wife with Libby, and that Libby responded, "Yeah, I heard that, too."

Well, I was surprised the other day to learn that Libby claimed that he raised the subject of Plame with Cooper (see "Another Note", at bottom).  However - suppose Libby was trying to keep Karl out of it by putting himself forward as Cooper's original source?  Might Fitzgerald have been wondering about that?

The NSA Program

The WaPo has a long article describing the NSA program as an electronic driftnet (contra Gen. Hayden).

We will steal this and add emphasis:

Even with 38,000 employees, the NSA is incapable of translating, transcribing and analyzing more than a fraction of the conversations it intercepts. For years, including in public testimony by Hayden, the agency has acknowledged use of automated equipment to analyze the contents and guide analysts to the most important ones.

According to one knowledgeable source, the warrantless program also uses those methods. That is significant to the public debate because this kind of filtering intrudes into content, and machines "listen" to more Americans than humans do. NSA rules since the late 1970s, when machine filtering was far less capable, have said "acquisition" of content does not take place until a conversation is intercepted and processed "into an intelligible form intended for human inspection."

Now, let's cut to TIME magazine, which previews AG Gonzalez's expected defense of the program in the Senate Judiciary hearing tomorrow (emp. added):

The Attorney General plans to tell Specter that the program is more limited than has been portrayed in some news reports, which have suggested that it could impinge on the privacy of innocent Americans through vast data mining of conversations and e-mails carried by telecommunication companies' trunk lines. "Contrary to the speculation reflected in some media reporting," Gonzales writes, "the terrorist surveillance program is not a dragnet that sucks in all conversations and uses computer searches to pick out calls of interest. No communications are intercepted unless first it is determined that one end of the call is outside of the country and professional intelligence experts have probable cause (that is, ‘reasonable grounds to believe') that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization."

It may be the case that TIME meant to say "no communications are *acquired*", little realizing the subtle distinctions in play.

Well - we will see what Gonzalez says.

The Libby Watch - Mark Your Calendars

The judges order setting out a timetable for the next steps is here (Feb 03 order).

Let's see:

Fitzgerald's response to the defense discovery requests will be filed by Feb 16; the defense will respond by Feb 21, and there will be a hearing on Feb 24.

The defense motion to dismiss will be filed by Feb 24; the prosecution will respond by March 17 (Happy St. Patrick's Day!); the defense will reply by March 31.

The defense will file any additional discovery by March 3; the prosecution will respond by March 20, and the defense will reply by March 27.

Other stuff is set for the fall (Sorry - "other stuff" is a technical term I endeavor to eschew).

And when might we expect rulings on these issues?  I infer that the judge orders others people, but not himself.

There is also a Feb-March timeline for the classified hearings, and non-classified transcripts will be made available.

Friends In High Places

The NY Times reports on the fund-raising effort by the Libby Legal Defense Trust:

...the managers of the fund-raising effort on behalf of Mr. Libby say they have already reached the $2 million mark and expect to increase the pace when they start a fund-raising Web site. "It's a particularly excellent start," said Mel Sembler, the chairman of the Scooter Libby Legal Defense Trust.

Well, then - I'll personally pledge some of the proceeds from this fundraising push.

Oh, whatever - let's go double or nothing!

Contact info here:

Libby Legal Defense Trust
2100 M Street, N.W.
Suite 170-362
Washington, D.C. 20037-1233

Fitzmas Never Comes

The Libby trial will be after the 2006 election and about as far from the 2008 election as the calendar allows.  Hard luck.  Now Libby just has to hope he is convicted (or acquited!?!) before Bush leaves office.

UPDATE:  Fortunately its a Saturday, but this is not a good news day for Special Counsel Fitzgerald.

First, filed under "The Times wouldn't print it if it weren't true":

By that point, the newly disclosed pages showed, Mr. Fitzgerald had centered his inquiry on possible perjury charges against Mr. Libby, although that was not publicly known at the time. Mr. Fitzgerald had abandoned a prosecution based on a federal law that makes it a crime to disclose the identity of a covert officer at the C.I.A. Such charges, Judge Tatel wrote, were "currently off the table for lack of evidence."

Oh, that will irk my friends on the left, who will note (with good reason) that Fitzgerald specifically kept alive the possibility that the testimony of Miller and Cooper might provide the critical evidence for an Intelligence Identities Protection Act prosecution.

But let's cut to the second paragraph of the WaPo:

The records also show that by August 2004, early in his investigation of the disclosure of Plame's identity, Special Counsel Patrick J. Fitzgerald had concluded that he did not have much of a case against I. Lewis "Scooter" Libby for illegally leaking classified information. Instead, Fitzgerald was focused on charging Cheney's top aide with perjury and making false statements, and knew he needed to question reporters to prove it.

There may well be a materiality issue in play here - at some point (as I understand it), the perjury needs to be associated with the possibility of a crime.  But Fitzgerald has apparently offered little evidence of actual harm done by the leak.

In the longish post below, I noted this from Judge Tatel's opinion:

While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment.

"Extremely slight news value"?  The same opinion cites Tim Russert's deposition saying this:

In his deposition, describing Plame's employment as a fact that would have been "[v]ery" significant to him --one he would have discussed with NBC management and potentially sought to broadcast...

Well.  If the judges had opened the possibility that Tim Russert has a better nose for news than Judge Tatel, the burden upon Special Counsel Fitzgerald to demonstrate some actual harm would have become higher.  And, per the recent correspondence and filings, Fitzgerald is being sticky about sharing with the defense information about her employment status and any CIA damage assessment.

This will all be hashed out by the high priced legal talent.  The defense said that a motion to dismiss all charges would be filed within a few weeks.  I infer from my careful viewing of "Law and Order", that these filings are made in roughly 99% of criminal cases, but perhaps lightning will strike.

"Extremely Slight News Value"

Much thanks to Jeralyn Merritt, who posts excerpts from and a link to the newly unsealed Judy Miller opinion.

Lots to pick through, but I happened to focus briefly on the discussion of just how covert Valerie Plame really was, and what harm was done to national security by the leak.  Here we go:

As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years"--representations I trust the special counsel would not make without support.(8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame worked in the CIA's counterproliferation division (I-53-55, 245-46), * * * * * [REDACTED] * * * * *

Most telling of all, Harlow, the CIA spokesperson, though confirming Plame's employment, asked Novak to withhold her name, stating that "although it is very unlikely that she will ever be on another overseas mission . . . it might be embarrassing if she goes on foreign travel on her own" (II-168-69), a statement that strongly implies Plame was covert at least at some point. While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment.

Finally, while it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel's identification of culprits, perjury in this context is itself a crime with national security implications. What's more, because the charges contemplated here relate to false denials of responsibility for Plame's exposure, prosecuting perjury or false statements would be tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters' qualified privilege, even if his only purpose--at least at this stage of his investigation--is to shore up perjury charges against leading suspects such as Libby *

So, the perjury charge is tantamount to punishing the leak, even though the leak has not been shown to have harmed national security.  Well, well.  Let me pull this out for special emphasis:

While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment.

The "extremely slight news value"?  I just happen to have a highly qualified expert witness handy who is prepared to say just the opposite.  No, it's not Marshall McLuhan, it's Tim Russert; oddly, if these judges would read their own opinion, they too could benefit from Mr. Russert's expertise.  From the opinion, referring to the Russert deposition with emphasis added:

Russert recalls this conversation very differently. In his deposition, describing Plame's employment as a fact that would have been "[v]ery" significant to him --one he would have discussed with NBC management and potentially sought to broadcast--Russert stated, "I have no recollection of knowing that [Wilson's wife worked at the CIA], so it was impossible for me to have [told Libby] that." (I-43, 32.) Asked to describe his "reaction" to Novak's July 14 column, Russert said, "Wow. When I read that--it was the first time I knew who Joe Wilson's wife was and that she was a CIA operative. . . . [I]t was news to me." (I-433.)

"Extremely slight news value"?  Tim Russert gave a similar (but not identical) account on The Tim Russert Show, CNBC, Oct 29, 2005 (excerpts here):

RUSSERT: Well, ironically, when I was asked about this, I said, if I had known this, I would have told Andrea Mitchell. I would have told Pete Williams.
MITCHELL: In fact, Tim, you would have called me and said, `You hosted "Meet the Press" and questioned Joe Wilson and covered the agency and you didn't know that the wife--what's going on with you?'
RUSSERT: And I did call Neal Shapiro, the head of NBC News, and say, `You know, we have this high-level viewer complaint about what's on cable,' and that--you know, that was the extent of my sharing information with Neal Shapiro.
GREGORY: Wait...
RUSSERT: If I had known something with--then I would have said to Neal--and Neal would have said, `Get to the cameras.' Or you know what? Actually it is so sensitive...
MITCHELL: We would have decided not to...
RUSSERT: ...I would have even talked--we would have talked it through and said...
MITCHELL: Right.
RUSSERT: ...`Hey, what about this?' or `Should we check her status?' It's easy to say that in hindsight, but I...
MITCHELL: In fact, we should tell...
RUSSERT: ...when I read it in Novak, boom.

Let's see - these judges can't see the news value, but Tim Russert and Andrea Mitchell can... who to believe?

And for folks who are stumped as to the news hook, here is a hint - picture this headline, which would have accompanied an honest depiction of the Joe Wilson editorial:

In Intel Dispute With White House, CIA Spouse Vouches For CIA

C'mon, even the Times might have choked on that absurdity.  FWIW, NBC did follow up with Joe Wilson about the fact that he was penning his editorial while serving as an adviser to the Kerry campaign, so NBC did show some sensitivity to his absurd conflicts of interest (eventually).

We will want to see some circling by the Legal Eagles, but Libby may have a materiality defense at hand - ultimately, the perjury has to be about something of consequence, I believe.

MORE:  Well, since I am now in the Tim Russert fan club, I may as well note this oddity - in the now-unredacted opinion, Russert's deposition is described as follows:

Russert stated, "I have no recollection of knowing that [Wilson's wife worked at the CIA], so it was impossible for me to have [told Libby] that."

Yet the phrase "Wilson's wife" just can't seem to pass Tim's lips in public - in every cite we can find, he denies knowledge of "Valerie Plame", and explains that he did not know her name.  As one example, here is the NBC press release:

Mr. Russert told the Special Prosecutor that, at the time of that conversation, he did not know Ms. Plame's name or that she was a CIA operative and that he did not provide that information to Mr. Libby.

Que pasa?  (Hmm, any self-respecting member of the fan club would have an answer to that...)

ANOTHER NOTE:  Another oddity - Libby says he mentioned Ms. Plame to Matt Cooper (sourced to reporters); Matt Cooper says her brought up Ms. Plame with Libby.  If Libby was going to lie, why couldn't he even remember that Cooper raised the delicate subject with him?  Or was he really that mixed up?  From the excerpt:

As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had ordered the trip, to which Libby responded, "[Y]ou know, offthe-record, reporters are telling us that Ambassador Wilson's wife works at the CIA and I don't know if it's true. . . . [W]e don't know Mr. Wilson, we didn't know anything about his mission, so I don't know if it's true. But if it's true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information." (I-203- 06.)...

In contrast, in a deposition limited to Cooper's contacts with Libby (see II-32-33, 107), Cooper said that he (Cooper) asked Libby "something along the lines of what do you know about Wilson's wife being involved in, you know, sending him on this mission?" (II-53.) According to Cooper, Libby responded, "[Y]eah, I've heard that too" (II-54), which Cooper took as confirmation (II-81-91).

Is Cliff May A Reporter? How About John Dickerson?

Who is a reporter in this puzzling age of bloggers, foundation presidents, and on-line jounralists?  A recently disclosed letter from Special Counsel Fitzgerald has us wondering.

Let's start with Cliff May, whose situation is described in detail by the Anon Lib.  Briefly, Cliff May wrote in Sept 2003 that he was aware that Joe Wilson's wife was at the CIA prior to the publication of the Novak column.  His lead was this:

It's the top story in the Washington Post this morning as well as in many other media outlets. Who leaked the fact that the wife of Joseph C. Wilson IV worked for the CIA?

What also might be worth asking: "Who didn't know?"

David Corn later announced that Cliff May had been contacted by the FBI, but added that Mr. May had been asked to lower the Cone of Silence over his chat with the investigators.

And the latest development - in a recently disclosed letter (Exhibit C), Special Counsel Fitzgerald said that "we were not aware of any reporters who knew prior to July 14, 2003, that Valerie Plame, Ambass. Wilson's wife, worked at the CIA, other than: Bob Woodward, Judith Miller, Bob Novak, Walter Pincus and Matthew Cooper."  (In a footnote, they add the clarification that they mean either "Valerie Plame" or 'Wilson's wife".)

Well, Cliff May is missing from that list.  So, is he (in Fitzgerald's mind) not a reporter, did he tell the FBI something different from what he told his NRO readers, or did the FBI take the questioning in some different direction?

As to the "not a reporter" possibility, who knows what Fitzgerald makes of a former NY Times reporter who heads a foundation and contributes to the National Review?  But let me say this, in a brief stint as Cliff May Apologist - it may be that FBI investigators and/or Special Counsel Fitzgerald refused to classify him as a reporter in order to prevent Mr. May from being shielded by the DoJ guidelines for journalists [DO NOT attempt this sort of spin at home].

On the other hand, let's look at Fitzgerald's list - Bob Woodward, Judith Miller, Walter Pincus, and Matthew Cooper have all described their experience with the investigation.  Bob Novak is famously silent, for reasons that are mysterious.

So the notion that Mr. May can't clarify his situation a bit seems odd.  I for one would love some insight into just how comprehensive the FBI questioning was, mainly so that I can buttress the case against Andrea Mitchell, who either cooperated with the investigation or didn't.

While we eagerly await word from Mr. May, let's see if John Dickerson, formerly a colleague of Matt Cooper's at TIME and now at Slate (and is emphatically a reporter) would like to take our suggestion for a column idea - tell us how your chat with the FBI went, or give us a real denial of same.

Regular readers should brace themselves for a shock - Raw Story has a good article telling us about Mr. Dickerson.  Here we go:

In the letter, Fitzgerald notes that a third Time Magazine reporter – who now serves as Slate’s chief political correspondent – had conversations with Administration officials about a trip conducted by Plame’s husband to investigate claims that Iraq had sought to purchase uranium from Niger.

"We also advise you that we understand that reporter John Dickerson of Time magazine discussed the trip by Mr. Wilson with government officials at some time on July 11 or after, subsequent to Mr. Cooper learning about Mr. Wilson’s wife," Fitzgerald writes. "Any conversations involving Mr. Dickerson likely took place in Africa and occurred after July 11."

Raw Story links to a Dickerson piece in which he denies receiving a leak about Ms. Plame, but says this:

More astonishingly, we learn from the Fitzgerald indictment that Ari Fleischer knew about Plame and didn't tell anyone at all. He walked reporters, including me, up to the fact, suggesting they look into who sent Wilson, but never used her name or talked about her position.

The dates don't match (Fitzgerald is talking about conversations after July 11), but here is Condi Rice, with Ari Flesicher, from July 11, 2003:

DR. RICE:  The IAEA reported it I believe in March.  But I will tell you that, for instance, on Ambassador Wilson's going out to Niger, I learned of that when I was sitting on whatever TV show it was, because that mission was not known to anybody in the White House.  And you should ask the Agency at what level it was known in the Agency.

That might be construed as walking the reporters up to the Wilson question.

So, was Mr. Dickerson, about whom Mr. Fitzgerald appears to be so knowledgeable, contacted by the investigation?  He "denies" it to Raw Story:

“I didn't know I was mentioned in the court filings until I saw it on the web,” he said. “I've never been contacted by anyone in Fitzgerald's office.”

"Fitzgerald's office" was established when he took over the case on Dec 30, 2003.  However, FBI investigators had been interviewing people since October 2003.

C'mon, Raw Story, turn up the heat a bit and get a real denial.  Or a real story from a real reporter.

As noted with Cliff May, I think there is a real public interest in learning just how comprehensive the FBI interviews were, and in hearing about the direction they took.

Missing Emails? Ongoing Brain-lock

Media Matters and MSNBC display brain-lock on the question of "missing" White House emails.  Let's give Media Matters the first at-bat:

Media largely ignored Fitzgerald revelation that White House may have destroyed emails

Summary: Few major news outlets have covered the fact -- first reported by the New York Daily News -- that in a letter to I. Lewis "Scooter" Libby's defense attorneys, special counsel Patrick J. Fitzgerald said that numerous emails from 2003 are missing from the White House computer archives.

OK, now over to MSNBC, that gets it wrong in the headline but recovers in the lead paragraph:

White House e-mails missing in CIA name case

Relevance to key questions about Karl Rove’s involvement in question

WASHINGTON - A letter from special prosecutor Patrick Fitzgerald to the I. Lewis “Scooter” Libby defense team reveals that some White House e-mails from 2003 weren't archived as they should have been.

Emphasis added as we call out, "Bingo!"  Eventually MSNBC cites the relevant passage from the Fitzgerald letter:

The last paragraph of the letter says, “We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed.” But it goes on to say, “We advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.”

"[N]ot all e-mail...was preserved through the normal archiving process on the White House computer system.”

Might that simply mean it was archived through some other process, or mis-archived and then recovered?  So is it "missing", as MSNBC says in the headline and Media Matters says in their typically restrained and reflective text?  Well, the Rove-Hadley email took a strange journey in response to multiple subpoenas and document requests, but it is not missing now (and I am betting that Karl Rove is in the Executive Office of the President).

I eagerly await a clarification from Media Matters, and I am confident that Glenn Greenwald, who has taken on the role of referee of the blogosphere, will be all over this.  And I have no doubt he will be highly critical of the CNN coverage cited by Media Matters. 

Sure he will.  In fact, I am holding my breath, because blue is my color (I have been advised that it brings out my eyes, which in any case will be bulging from oxygen deprivation).  As we noted yesterday, there is also good news here for Kevin Drum - a Special Counsel has already been appointed, and seems to have looked into this.

MORE:  The letter is Exhibit C here; MSNBC says it is Exhibit B, which is a Jan 9 letter from Fitzgerald.  MSNBC does get the date right - the Jan 23 letter from Fitzgerald is the one.  I'll just cite it so we can see if they run a correction:

The letter in Exhibit B
Buried in the Tuesday filing at District Court — “Exhibit B” in a motions request by Libby's defense team — is a Jan. 23 letter sent to Libby by Fitzgerald.

TAKE ACTION: Contact info for Media Matters is here, or give them a tip at "[email protected]".  We know how highly they value their reputation for accuracy, and this will be yet another demonstration of that.

Fitzgerald - Missing Emails?

In recent court filings from the Libby case we learned that certain White House emails had not been archived in accordance with normal procedures (see Exhibit C).

Georgia10 at the DailyKos does a nice job of unmasking the Bush-Cheney conspiracy, but also does a nice job of preserving a question mark in the headline:

Fitzgerald Reveals Someone's Been Tampering With Evidence?

Tampering with evidence?  Georgia10 makes much of the "twelve hour gap" - the DoJ notified WH Counsel Gonzalez about the Plame investigation in the evening, and Gonzalez notifed the WH staff to preserve records the following morning.  Of course, WH emails are subject to archiving under the 1978 Presidential Records Act, so the gap is irrelevant to this specific issue, but fun's fun.

Even the word "deleted", tossed about casually by folks untroubled by reality, is premature - for all you or I know, the White House has a double-secret archive for national-security emails, and Fitzgerald is simply hinting to Libby's attorneys that to access these emails they have to ask the archivists nicely with the proper buzz-phrase that pays.  [Or, Fitzgerald may be alluding to the mysterious journey taken by the Rove-Hadley email - see UPDATE.]

As noted at DKos, an investigation into destruction of evidence is well within the scope of the Fitzgerald inquiry.  The good news is, there is no need to appoint a special counsel to look into this, since we already have one.  More good news - if this is really a significant story, Fitzgerald's office continues to be leak free.  And even better news - Fitzgerald notes that "we are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed".  How he would know that without some hint as to what is missing is baffling, although I suppose it may be a statement of pure ignorance.  But if Fitzgerald does know what it was that was not archived with the normal procedures, that does suggest that he gained access to it some other way.

The NY Sun also covers this - they manage to round up some "no comments", and walk through the legal background going back to the 80's.  Pete Yost of the AP also has coverage, and concludes with this:

The Presidential Records Act, passed by Congress in 1978, made it clear that records generated in the conduct of official duties did not belong to the president or vice president, but were the property of the government.

The National Archives takes custody of the records when the president leaves office.

"Bottom line: Accidents happen and there could be a benign explanation, but this is highly irregular and invites suspicion," said Steve Aftergood, director of the Federation of American Scientists government secrecy project.

"A particular subset of records sought in a controversial prosecution have gone missing," Aftergood said. "I think what is needed is for the national archivist to ascertain what went wrong and how to ensure it won't happen again."

Well, there are plenty of questions without answers, so I expect this will make a useful Dem screaming point for a few days.  And we are curious to see how long the folks at DKos can hold on to that question mark.

MORE:  More on Mark Kleiman?  Oh, whatever.  Let's reflect on this point of his:

Disposing of another wingnut talking point, Fitzgerald asserts that, as of the Novak column, the only reporters who knew that Valerie Plame worked at the CIA were Woodward, Miller, Pincus, and Cooper. So much for the argument that the fact was widely known in political Washington...

Just to grab a name at random, the consensus is that Fitzgerald never even chatted with Nick Kristof of the Times.  In his letter Special Counsel Fitzgerald was able to distinguish between what he knew ("we were not aware"), and what was.  Would that others could do the same.

UPDATE:  Fitzgerald cites both the Office of the Vice President and the Executive Office of the President in his cautionary statement:

"We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed," Fitzgerald wrote in a letter to the defense team.

But the prosecutor added: "In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

Well - might he simply be referring to the mysterious journey taken by the Rove-Hadley email?  Maybe he was offered some techno-babble explanation for why that email eluded the first round of subpoenas, and the supporting evidence included other emails not "preserved through the normal archiving process".  In which case, he may simply be advising the Libby team of his own *possible* inability to comply with their discovery since the White House *may* have failed to comply with his subpoena - sure, they tell him they have solved the glitch and recovered everything, but how is a Special Counsel to know?

More Court Filings From Libby

The WaPo and the Times pick through yet more court filings from Lewis Libby's defense team [See UPDATE for the filings].

The WaPo leads with one of our favorite questions - how covert was Valerie Plame?

From the WaPo:

Attorneys for Vice President Cheney's former chief of staff urged a court yesterday to force a prosecutor to turn over CIA records indicating whether former CIA operative Valerie Plame's employment was classified, saying the answer is not yet clear.

The defense team for I. Lewis "Scooter" Libby also asked that the court require Special Counsel Patrick J. Fitzgerald to turn over any informal assessments conducted by the CIA to determine whether the leak of Plame's identity in July 2003 damaged national security or agency operations.

My official position (aka "guess") is that her status as a formerly covert operative was itself classified; for what it's worth, the original CIA referral to the Department of Justice did not cite the Intelligence Identities Protection Act, but simply asked the DoJ to investigate a leak of classified information.

The Libby team is requesting any informal CIA assessments; as previously noted, the CIA does not conduct a formal assessment until after any court proceedings are finished, in order to avoid this sort of discovery.

However - if her outing really did pose a security problem, it defies common sense that no one in the CIA assessed it.  That does not mean the CIA will own up to it, of course, but both Bob Woodward and Andrea Mitchell claimed to have received leaks of minimal damage.  Bob Woodward:

WOODWARD: ... They did a damage assessment within the CIA, looking at what this did that Joe Wilson's wife was outed. And turned out it was quite minimal damage. They did not have to pull anyone out undercover abroad. They didn't have to resettle anyone. There was no physical danger to anyone and there was just some embarrassment.

So people have kind of compared -- somebody was saying this was Aldridge James or Bob Hanson, big spies. This didn't cause damage.

MORE:  Missing emails from Dick Cheney?  As I recall from Al Gore's days in the heat of the White House campaign finance debacle, there are specific Federal laws regarding the archiving of White House records, including emails.

So - are emails missing, and was this beyond the scope of Fitzgerald's investigation?

UPDATE:  Court filings:

Main Document

Exhibits A-C: this contains some very interesting correspondence between Special Counsekl Fitzgerald and Libby's attorneys.

Exhibits D-F: this has a transcript of the Oct Fitzgerald press conference; a copy of the Oct 1, 2003 WaPo story describing the CIA criminal referral; and the White House order from then-counsel Gonzalez ordering folks to cooperate with the investigation.

Proposed Order

Tom Friedman Gets Results (Sort Of)

George Bush, in his State if the Union address, made a clarion call for, well, not energy independence exactly, but something.  From Bumiller and Nagourney of the Times:

President Bush offered the nation a modest menu of energy, health and education proposals and warned against the "false comfort of isolationism" on Tuesday in a State of the Union address that sought to reassert his control over the nation's agenda heading into a pivotal midterm election campaign.

In one of his most striking declarations, Mr. Bush said "America is addicted to oil" and set a goal of replacing 75 percent of the nation's Mideast oil imports by 2025 with ethanol and other energy sources.

But even that goal was less ambitious than it might have appeared — the United States gets less than 20 percent of its oil from the Persian Gulf — and the speech was notable largely for a lack of big new proposals from a president who for five years has not shied from provocative and politically risky initiatives.

...

In energy policy, a major part of his address, Mr. Bush promoted the construction of nuclear power plants and renewed a call for the development of alternative fuel for automobiles, including ethanol, which is made from corn, as well as the development of fuel made from the waste of plant crops.

Energy analysts also said Mr. Bush's goal to replace 75 percent of America's Mideast oil imports by 2025 was not as meaningful as it appeared because the bigger suppliers to the United States are Mexico, Canada and Venezuela.

But for Mr. Bush, the emphasis on reducing foreign dependence on oil, particularly in the often volatile Persian Gulf, reflected a critical political dynamic this year: Republicans have been increasingly alarmed that escalating gas and home heating prices could prove a major issue in Congressional elections this year, particularly as oil companies are reporting record profits.

Tom Friedman has been beating the drum on this for a while.  From his Jan 27 column:

On Tuesday President Bush will deliver his State of the Union address and map out priorities for his last three years. The direction in which America needs to go is obvious: toward energy independence. If Mr. Bush steps up to that challenge, this speech could be a new beginning for his presidency. If he doesn't, you can stick a fork in this administration. It will be done — because it will have abdicated leadership on the biggest issue of our day.

And in today's column, Mr. Friedman provides a fairly conventional explanation of the link between dictatorships and high oil prices:

So far the democracy wave the Bush team has helped to unleash in the Arab-Muslim world since 9/11 has brought to power hard-line Islamic fundamentalists in Iraq, Palestine and Iran, and paved the way for a record showing by the Muslim Brotherhood in Egypt.

...

But is this all America's doing? Not really. It's actually the product of 50 years of petrolism — or petroleum-based politics — in the Arab-Muslim world. The Bush team's fault was believing that it could change that — that it could break the Middle East's addiction to authoritarianism without also breaking America's addiction to oil. That's the illusion here. In the Arab world, oil and authoritarianism are inextricably linked.

How so? Let's start with Iron Rule No. 1 of Arab-Muslim political life today: You cannot go from Saddam to Jefferson without going through Khomeini — without going through a phase of mosque-led politics.

Why? Because once you sweep away the dictator or king at the top of any Middle East state, you go into free fall until you hit the mosque — as the U.S. discovered in Iraq. There is nothing between the ruling palace and the mosque. The secular autocratic regimes, like those in Egypt, Libya, Syria and Iraq, never allowed anything to grow under their feet. They never allowed the emergence of any truly independent judiciary, media, progressive secular parties or civil society groups — from women's organizations to trade associations.

The mosque became an alternative power center because it was the only place the government's iron fist could not fully penetrate.

...It is not this way everywhere. In East Asia, when the military regimes in countries like Taiwan and South Korea broke up, these countries quickly moved toward civilian democracies. Why? Because they had vibrant free markets, with independent economic centers of power, and no oil. Whoever ruled had to nurture a society that would empower its men and women to get educated and start companies to compete globally, because that was the only way they could thrive.

Well, we are all for reducing our dependence on oil as part of a national energy policy.  However, although the notion that our imports from a particular region are the key issue may make political sense, it lacks economic substance (as Bush supporters were pointing out in 2001).

And what is Bush's point?  If Persian Gulf oil is important to the global oil market in 2025, the US will still have a security interest in the region even if the major importers of that oil are China, India, and Japan.  Or is it his thought that the US will abandon the region and let the Chinese and Indians manage it?  As a friend of Israel, let me express some skepticism.

Bush's words follow the break.

UPDATE:  Waves of nostalgia are washing over me as I ponder Kerry's program for energy independence from the Saudis.

And one more thing - for years we were toled that OPEDC's long term strategy was to keep oil in the $20-$30 aper barrel range so that alternative energy sources are not economic.  If alternative energy can't compete with $60 oil (and headed up, if we sanction Iran), what are we talking about?

Here is a link to CNN-Fortune on ethanol, and a presentation on ethanol from Brazil.

And let's applaud this happy coincidence of name and career:

"Energy dependence is America's economic, environmental and security Achilles' heel," says Nathanael Greene of the Natural Resources Defense Council, a mainstream environmental group.

STILL MORE:  Kidding!  We get an explanation from the energy secretary and the economic advisor:

WASHINGTON - One day after President Bush vowed to reduce America's dependence on Middle East oil by cutting imports from there 75 percent by 2025, his energy secretary and national economic adviser said Wednesday that the president didn't mean it literally.

What the president meant, they said in a conference call with reporters, was that alternative fuels could displace an amount of oil imports equivalent to most of what America is expected to import from the Middle East in 2025.

...

"This was purely an example," Energy Secretary Samuel Bodman said.

He said the broad goal was to displace foreign oil imports, from anywhere, with domestic alternatives. He acknowledged that oil is a freely traded commodity bought and sold globally by private firms. Consequently, it would be very difficult to reduce imports from any single region, especially the most oil-rich region on Earth.

Here is the White House fact sheet.