UNITED STATES OF AMERICA v. I. LEWIS LIBBY, also known as "SCOOTER LIBBY"

sounds like a sensible policy, enacted by a reasonable and principled man.

 

again, there's a lot of speculation and innuendo, but no "evidence" shall we look at some?

[rquoter]At the threshold, an agent whose identity has been revealed must truly be “covert” for there to be a violation of the Act. To the average observer, much less to the professional intelligence operative, Plame was not given the “deep cover” required of a covert agent. See 50 U.S.C. § 426 (“covert agent” defined). She worked at a desk job at CIA headquarters, where she could be seen traveling to and from, and active at, Langley. She had been residing in Washington – not stationed abroad – for a number of years. As discussed below, the CIA failed to take even its usual steps to prevent publication of her name.

Moreover, the government may have “publicly acknowledged or revealed” her intelligence relationship prior to publication of Novak’s July 14, 2003 column. “The United States has ‘revealed’ an intelligence relationship if it has disclosed information which names, or leads directly to the identification of . . . a covert agent.” S. Rep. 97-201, at 23. An article in The Washington Times indicated that Plame’s identity was compromised twice prior to Novak’s publication.7 If this information is accurate – another fact a court should explore – there is an absolute defense to prosecution. See 50 U.S.C. § 422(a).

As a further means of ensuring the Act would not intrude into journalistic activity, Congress insisted that the government prove it was taking “affirmative measures” to conceal the covert agent’s identity. 50 U.S.C. § 421. The prosecution cannot fulfill this element by proving the United States has “not publicly acknowledged or revealed” the covert relationship. S. Rep. 97-201, at 19. Similarly, the “mere fact that an intelligence relationship appears in a [classified] document” does not establish affirmative measures. Rather, this provision was “intended to confine the effect of the bill to relationships that are deliberately concealed by the United States,” an element that depends on the “facts and circumstances of each case.” S. Rep. 97-201, at 18-19 (emphasis added).

There are sufficient facts on the public record that cast considerable doubt as to whether the CIA took the necessary “affirmative measures” to conceal Plame’s identity. Indeed, these facts establish such sloppy tradecraft that, at minimum, the CIA was indifferent to the compromise of her identity.

The following facts are public:

* The CIA sent a non-CIA employee, Joseph C. Wilson 4th, on a mission to Niger to determine whether Saddam Hussein had tried to purchase “uranium yellow cake,” an ingredient for making a non-conventional weapon.8




* Wilson had not served in Niger for over two decades, and, unlike his supposedly undercover wife, was not an expert in nuclear weapons.9




* Wilson was not required to sign a confidentiality agreement about his mission. 10




* Wilson was not prevented by the CIA from writing his Op-Ed for The New York Times, an article that not only criticized the Administration, but also detailed his mission and findings.11



* When columnist Novak contacted the CIA to verify that Plame worked for the Agency, he says that the Agency not only verified her employment but also failed to give him a serious request not to publish her name.12



o The CIA’s usual procedure when it is concerned that publishing a fact would endanger a covert agent is to have a high ranking official, usually the Director, contact the journalist and ask that information not be published.13



o The CIA did not prohibit Plame from making political contributions under the name “Wilson, Valerie E.,” facts that are publicly available at the FEC.



Novak’s column can be viewed as critical of CIA ineptitude: the Agency’s response to a request by the State Department and the Vice President’s office to verify whether a specific foreign intelligence report was accurate was to have “low level” bureaucrats make the decision to send a non-CIA employee (neither an expert on Niger nor on weapons of mass destruction) on this crucial mission at his wife’s suggestion. See also Wilson Op-Ed. Did no one at Langley think that Plame’s identity might be compromised if her spouse writes a nationally distributed Op-Ed piece discussing a foreign mission about a volatile political issue that focused on her subject matter expertise?

The public record provides ample evidence that the CIA was at least cavalier about, if not complicit in, the publishing of Plame’s name. Moreover, given Novak’s suggestion of CIA incompetence plus the resulting public uproar over Plame’s identity being revealed, the CIA had every incentive to dissemble by claiming it was “shocked, shocked”14 that leaking was going on, and thus made a routine request to the Justice Department to investigate. [/rquoter]

victoria toensing, author of the above brief, also wrote most of the law in question.

 

The earlier question was not even allowed to be brought up at trial.

http://www.washingtonpost.com/wp-dyn/content/article/2007/02/16/AR2007021601571.html

[rquoter]What the CIA Leak Case Is About

By Byron York
Saturday, February 17, 2007; A31

At the end of each witness's testimony in the perjury and obstruction trial of Lewis "Scooter" Libby, after prosecutors and defense attorneys examined and cross-examined, U.S. District Judge Reggie B. Walton asked jurors to write down any questions they had. Walton would then look through the papers, decide which questions were appropriate and pose them to the witness.

Now, as the case heads to the jury, those queries are our best hints about what jurors are thinking.

But last week there was a moment when we got a hint not from a question that Walton asked, but from one he refused to ask. After the testimony of star prosecution witness Tim Russert, Walton scanned the jurors' queries and announced, "There is going to be one question I'm not going to ask. I've concluded that that question is not appropriate and therefore you should not speculate as to what the response would have been."

What was he talking about? A moment later, Walton told the jurors: "What Mrs. Wilson's status was at the CIA, whether it was covert or not covert, is not something that you're going to hear any evidence presented to you on in this trial."

"Whether she was, or whether she was not, covert is not relevant to the issues you have to decide in this case," he said.

It is The Thing That Cannot Be Spoken at the Libby trial.

From the first day, Walton has said that jurors will not be allowed to know, or even ask, about the status -- covert, classified or otherwise -- of Valerie Plame Wilson, the woman at the heart of the CIA leak case. "You must not consider these matters in your deliberations or speculate or guess about them," he told jurors in his opening instructions.

A few days later, on Jan. 29, Walton told everyone in the courtroom that the jurors are not the only ones in the dark about Mrs. Wilson's status. "I don't know, based on what has been presented to me in this case, what her status was," Walton said. Two days later, he added, "I to this day don't know what her actual status was."

Walton's reasoning is this: The trial is about whether Libby lied to the grand jury in the CIA leak investigation. Prosecutor Patrick Fitzgerald never charged anyone with leaking the identity of a covert or classified agent. Libby isn't on trial for that, so jurors -- and judge -- don't need to know.

The problem is, the entire case stems from accusations that the Bush White House illegally leaked Mrs. Wilson's identity in an effort to get back at her husband, former ambassador Joseph Wilson, for his high-profile criticism of the administration's case for war in Iraq. That's why the CIA leak investigation began, and it's why Libby appeared before a grand jury, leading to the perjury charges against him. It's what the CIA leak case is about. Yet Walton has told jurors to put it out of their minds.

However well-intentioned, the prohibition isn't working; the question of Mrs. Wilson's status came up in court virtually every day. Take, for example, the time prosecutors played tapes of all eight hours of Libby's grand jury testimony.

And what was Libby asked about?

"Did you have any sense that if you revealed the person's identity out at the CIA you may be compromising the identity of a covert person?" Fitzgerald was recorded as asking Libby.

"No, sir," Libby responded. "I mean, my, my understanding is that most of the people at the CIA are not covert . . ."

"You didn't consider that there might be a risk that a person working at the CIA might be overt to other CIA employees and even sometimes to the government, but may be operating undercover -- or might otherwise be a covert person?"

"I had no sense that it was something classified."

The jury heard it all, aided by their own copies of the transcript and exhibits. Of course, if they thought about Mrs. Wilson's status, they would have been violating Judge Walton's order.

Then there was the argument Fitzgerald had with defense lawyer Ted Wells over Fitzgerald's theory that Libby lied because he was afraid for his job after President Bush announced that anyone who leaked classified information about a CIA agent would be fired.

Wait a minute, said Wells. "The jury has been instructed that the issue of whether it was classified or whether she was covert will not be presented in this case."

"I'm not going to tell the jury the information was classified," Fitzgerald responded. "I will tell the jury that there was an investigation into whether the law was violated."

Of course, we all knew -- and the jury knew too, since it was discussed in Libby's grand jury testimony -- that the law to which Fitzgerald referred was the one barring disclosure of a covert agent's identity.

Outside the courtroom, Fitzgerald has said that Mrs. Wilson's status was in fact classified. The Libby indictment says that, too. But the judge has not allowed the jury to see the indictment, either.

The result is that jurors have heard constant suggestions that some sort of crime, committed by the administration and perhaps by Libby himself, lies at the bottom of the case. An air of accusation hangs over the courtroom.

But the accusation can't be discussed.

Maybe in the end, jurors will be able to make sense of it all. But it's more likely that even after the trial ends, they'll still have one question they want answered.[/rquoter]

and just to preempt rimmy's next post, an unsubstatiated allegation in an indictment is not proof. if he had such proof, why didn't he present it at trail, or file charges that would support the allegation?

 

I have to admit that is pretty interesting and I would be curious why the judge didn't allow that in the trial. I would definately say that is grounds for an appeal.

 

Wow. That's fascinating stuff. You would think that such an esteemed author, writing on such a serious matter would have great influence on the legal proceedings. Particularly on the conservative DC Court of Appeals. If you thought that, you'd be wrong. Reading the decision that upheld every bit of Fitzpatrick's arguments, the opinion barely mentions the Amicus brief filed by the Toensing and her brief certainly did not carry any weight in their decision. (I would say never mentions, but I didn't read the entire 70+ pages of the decision with great care, so I'll couch my language.) Here, read it for yourself:

http://72.14.207.104/search?q=cache...uriae"+"Judith+Miller"+text+&hl=en&lr=lang_en

Fact is, Victoria's a hack and dressed up a bunch of wingnut talking points into a brief.

And I find it hilarious that you feel you have to warn me that an unsubstatiated allegation in an indictment is not proof when you yourself apparently take unsubstantiated allegations in an Amicus brief written by a clear partisan with no affidavits or other documents supporting those allegations as "facts."

 

Unsubstantiated allegation?

This quote is from a judge who was on the case. Judges certainly don't make these kinds of statements with just an Unsubstantiated allegation

Then we have this bit of proof from somebody who ought to know. I would consider his testimony among the best proof there is.

Sorry basso, but that evidence easily trumps your hammed up Amicus brief.

The quote from the judge who no doubt has seen plenty of Amicus briefs on the subject trumps that alone. Add to that the testimony by the person who was the CIA's No. 2 guy in clandestine service. Add to that the other testimony from CIA co-workers closely associated with Plame's status at the CIA.

Half of your quotes trying to say that there isn't proof comes Libby who was just convicted of lying about this very investigation. Why should his word trump that over judges who have seen evidence from both sides, and CIA employees familiar with the situation?

I've never seen an example of someone being so willfully blind.

 

i actually i don't. my argument is we, like judge walton, don't know what plame's status was. you seem to think you have proof she was covert, but have presented only argument, speculation and innuendo to support your claim. there's plenty of evidence to bolster either side in this arguement, so we could go back and forth on this for awhile.

but i will leave you with a question, one that IMHO provides the strongest argument in favor of her NOT being covert: We now know who the leakers were, ie Armitage, and Fleisher, initially, possibly Rove and Libby subsequently. If that's the case, and if Fitz knows her status, which he has said he knew as far back as 2004, why have none of the above been charged, and the investigation closed down.

the answer can only be they did not break the law.

 

the answer could easily be that while he knows she was covert, he also knows that he might not be able to prove intent. We know that Walton wasn't the judge at the trial dealing with the covert status for Plame, and we have statements from judges that were.

 

Let me say it slowly: The. Trial. Was. About. Perjury. And. Obstruction. Of. Justice.

And really, don't you think that the Prosecutors would have loved to talk about Plame's status in great detail as it would have made it much easier to make their case regarding Libby's state of mind and motive for committing perjury and obstruction of justice?

The other thing to remember is that if Libby's defense wanted to raise it, they could have... it would have just given the Prosecution more openings to hammer Libby's story. Fact is, they attempted graymail by suggesting they would need a bunch of classified info to mount a defense and the got called on it.

 

No. Another answer can be that there was not enough proof to convict. Again, do you really want to argue that the only thing Al Capone was guilty of was tax evasion?

 

actions speak louder than words. where's the indictment?

 

So you do believe that Al Capone was only guilty of tax evasion?

 

I can't decide if this is something Capone bears responsibility for or if it is merely a graphic representation of the strength of basso's arguments.

 

it's okay to commit murder or treason as long as there will not be enough evidence to be indicted for it

 

At the risk of defending Basso I'm still wondering why the judge didn't allow a defense dealing with Plame's status. True he was indicted on perjury and obstruction of justice but if there is no original crime it seems odd to obstruct something that isn't a crime. That is a different matter than if the prosecutor feels there is a crime but he doesn't feel he has enough evidence to convict a particular person.

For the record I am very convinced that Plame was covert and there is ample enough evidence to support that. What I'm wondering is why the judge didn't allow this to be brought up as an issue for either defense or prosecution.

 

Hmmmm. Perhaps basso is right. Perhaps we don't know. We might soon...

Waxman's letter to Fitzgerald asking him to testify...

http://oversight.house.gov/Documents/20070308134201-02108.pdf

 

Because if it was brought in, it would have had to proven using govt. docs and witnesses, something the CIA was loathe to do, something the Judge didn't want to have to deal with, and something Libby's lawyers didn't want because even if Fitzgerald couldn't make a case to indict under the statute, the circumstantial evidence relating to the perjury and obstruction charges would have been damning to their client's interest.

 

Also, he obstructed an investigation. Even if you assume there was no crime, he prevented the investigators from learning the truth about actions critical to determining if a crime had been committed.