This exchange between Andrew McCarthy and Mark Levin at the Corner perfectly sums up serious conservative thought on the Libby indictments: To begin, McCarthy:
Some observations from the wrenching experience of watching TV last night and witnessing people I admire – people who were on the right side of the Clinton wars and have heretofore been strong rule-of-law conservatives – engage in what is a startling defense of the conduct alleged against Scooter Libby.
The claim that Libby is being smeared with the allegation that he leaked classified information even though he hasn’t been charged with it, and that because he has not been charged he has no way to get his good name back from the said smearing, is specious.
This is not a case where a person has not been charged with any crimes at all, where the government doesn’t have the nerve to put its money where its mouth is, or where the government itself is leaking out damaging innuendo. The government has not filed a bare-bones indictment, as it could legally have done. Instead, the special prosecutor has given Libby elaborate notice, extensively describing his alleged conduct. We are not at a loss here to make our own judgments about what the conduct means if it is proved.
Like it or not, the mere fact that Plame was employed by CIA is alleged to have been classified. Libby is alleged to have learned this fact in his official capacity. He is alleged to have told it to Judith Miller of the New York Times, a person not entitled to receive classified information (and to have implicitly confirmed it for Matthew Cooper of Time, another person not entitled to receive it). Here on Planet Earth, this is known as leaking classified information.
For the reasons I discussed yesterday, this potentially makes out a violation of the espionage act. However, the supposedly intemperate, smearing prosecutor, Pat Fitzgerald, gave Libby the benefit of the doubt on his mental state (and for policy reasons pertaining to overzealous enforcement of the espionage act). He exercised discretion not to charge the leaking as a separate crime.
The leaking is, nonetheless, essential to proving the crimes that actually are charged – obstruction, false statements to investigators, and perjury. If, as his apologists claim, Libby has been done an injustice on this point, it will be very easy for him to get his good name back. All Libby has to do is demonstrate at trial that either one of two things is not true: (a) that Plame’s employment with CIA was classified information; or (b) that Libby disclosed that information to a person not entitled to receive it.
Anyone think he will even try? Anyone think the people who are making the smear claim will try to take on either of these two very simple, straightforward allegations?
Look, if you want to say Libby is not guilty of a leaking crime because he did not have the required mental state, that’s a fair argument. But let’s face it honestly: he is a smart guy and a high public official who appears to have performed all the acts one has to perform to commit a leaking crime. To contend that he is being smeared is absurd.
And Fitzgerald plainly cut him a break by not charging him with the espionage act. Maybe Libby could have beaten such a charge. But maybe not. Do the people making this smear argument really want to live in a country where a prosecutor charges every conceivable crime that may have been committed? And for no better reason than to rebut a red herring of a talking point?
If convicted, Libby’s already looking at 30 years’ exposure under the statutes that have been charged (although much less under the sentencing guidelines). Would his sympathizers actually prefer to see him facing 40 years, with 10 tacked on for the leaks?
…To which Mark Levin replies, forcefully:
I find it refreshing that people I admire are on TV and elsewhere are explaining to the American people that this indictment does not charge Libby with underlying offenses—that is, the great offenses to national security related to outing a covert CIA agent. Andy says that but for Patrick Fitzgerald’s kindness, Lewis Libby could have been charged with passing illegally classified information to reporters, specifically the identity of Valerie Plame which, in itself, is classified. (For weeks we’ve been told that Fitzgerald is tough as nails; today we are told he’s a pussy cat.) Nonsense. Frankly, this has the smell of Lawrence Walsh, who claimed that top Reagan officials violated various laws without charging them, and his defenders waived around Walsh’s public statements as evidence of crimes. It then becomes impossible for someone like Libby to defend against such allegations because they’re not made in the form of a charge. Andy falls into this unfortunate trap in his latest post, and with only his friend’s indictment in hand (so much for waiting for all the facts, which we were urged day after day to the lead up of this indictment). Libby deserves the same benefit of the doubt demanded of Fitzgerald and his amen corner. Indeed, the law compels it, and more. Please, spare us the lectures about the rule of law when the legal process hasn’t even had a chance to play itself out, and Libby is condemned as all but guilty without the benefit of due prcess.
Now, as for Plame being classified, I have read the indictment several times, and other than Fitzgerald’s assertion, the fact is that we have nothing but an assertion. What exactly is her classification, and is it in fact classified? Of course the relevance of this will be explored by defense counsel, and this will be put to the test if necessary. Let me suggest that Fitzgerald didn’t bring a straightforward charge on this point because, as Andy in truth concedes, he couldn’t meet all the elements of the statute, and the statute itself is not typically used in this fashion.
Finally, you bet Fitzgerald smeared Libby during his press conference. All the talk about violations of national security, outing a CIA official, and harming CIA recruitment was nothing more than a well-rehearsed public relations speech intended to paint these indictments as something more than they are (albeit serious in their own right). And that is why, I believe, we have strained efforts now to accuse Libby of passing classified information without the benefit of an actual charge.
…Then adds the following clarification:
[… I have nothing but the highest regard for my friend Andy McCarthy, and his insight is both unique and always intelligent. Perhaps I appear as a special pleader for Lewis Libby. I am not. I don’t know the man, and have never met him. But I do think we benefit from a good exchange on the facts and law, and not simply accept a prosecutor’s allegations at face value. That’s not how the legal system works. That’s how litigation works. So, a one-side analysis is not a realistic analysis. It’s not my intention to be one-sided, but to contribute to the excellent points Andy and others have and are making.
Obstruction in its various forms (perjury, false statements, etc.) is, of course, very serious. But at the present stage in Libby’s case are charges not fact. If the charges are found to be true by a trial jury (assuming no plea agreement), then Libby, like anyone else, has committed very serious federal crimes. No one should downplay this, and I don’t think most people are. But that’s not to say Libby has committed criminal acts that have endangered the national security of this country. And this is where I found Patrick Fitzgerald’s press conference over-the-top. I have now read through the transcript of his press conference, and come away even more troubled. I believe the impression he hoped to leave with the American people, most of whom won’t bother to read the actual recitation of facts and actual charges in the indictment, is that Libby endangered his own country.
On another point, some are struggling with arguments that seek to draw parallels between Clinton and Libby respecting perjury. It is not my intention to dismiss all such analogies, but to point out at least one significant fact which, in our desire to be consistent should not be overlooked. Bill Clinton was actually held in contempt by Judge Susan Webber Wright. She made an actual finding that Clinton made “intentionally false statements” on several occasions during his sworn deposition testimony. As the judge noted in her ruling, Clinton had a right to a hearing to challenge her decision, in which he could provide testimony and evidence in his defense. Clinton chose not to. In other words, he accepted Judge Wright’s finding without challenge. As a result, his law license was susupended for five years, he was forced to resign from the Supreme Court Bar, and he paid fines. In Libby’s case, he is accused of prejury, false statements and obstruction. He has yet to defend. So, while the seriousness of the charges are not to be downplayed, they are merely charges and, at this point, nothing more. Some argue they are strong charges. They may well be. But we’ve yet to hear from Libby and his lawyers.
And, of course, this is all a far cry from Joe Wilson’s allegation that Karl Rove outed his wife, a purported CIA covert agent, which is how all this began. In the end, we will learn that Rove was not Bob Novak’s source, Plame was not covert, and Joe Wilson remains a liar.
Last evening, when I posted a link to McCarthy’s summary (update 22), I pointed out that I found it ironic that Libby committed a technical crime under the espionage act with regard to “compromising†Plame (which I noted he violated in letter, but not spirit—as the act itself was enacted to guard against damage to the US and providing aid to the enemy) in order to rebut the lies being proferred by Joe Wilson, which were, in my estimation, intended to hurt the President’s foreign policy and weaken the position of the US with regard to Iraq in particular, and the GWOT more broadly.
That Fitzgerald did not indict under the espionage act may, as McCarthy argues, illustrate both forebearance and common sense—but as I likewise argued in the comments, “I don’t think the intent of the espionage act was to convict people like Libby, which is likely why Fitzgerald didn’t charge him. That, and the “classified†status for a CIA agent is pretty pedestrian stuff.
“[And] Because [Fitzgerald] didn’t charge [Libby under the espionage act], I don’t like that he brought all that up during the press conference.”
This is precisely Mark Levin’s point, and one that I obviously find compelling. In a technical, prosecutorial sense, McCarthy is right, and Fitzgerald should be applauded for his decision not to indict for the passing of “classified material” (especially given that such a charge requires the prosecution to prove a kind of willfulness that is simply not apposite in this case); but the rub is, once we do that, we must conclude that his press conference yesterday was a bit of defensive offensive—an attempt at self-justification that damaged Libby’s ability to defend himself in the court of public opinion.
(Meanwhile, Cliff May points to the obvious genesis of this whole mess from the White House side—a point Stephen Hayes, among others, has made recently as well. For what it’s worth, many of us on the right were furious, at the time Fleischer started walking back that portion of the State of the Union address, that the White House wasn’t sticking to its guns. They panicked, and they were conciliatory when they should have been forceful and reassuring. And the war effort has been paying for it ever since. Words matter.
(May also provides a nice roundup of media reaction.)
****
(h/t Cole)
I tend to lean toward Levine and away from McCarthy and not out of partisanship. Fitzgerald may be a nice guy, but he is also a hard-nosed prosecutor. If he had evidence Libby, or anyone else violated the espionage act or the IIPA, he would have indicted them in a heart beat. This is pure speculation, but I believe that early on Fitzgerald got testimony from the CIA, probably Tenet, that Plame did not meet the definition of “covert agent” as defined in the IIPA. But he also came to the conclusion that she shouldn’t have been outed anyway. But he has no law that specifically makes it a crime to “out” a CIA Analyst working at Langley. IIPA is very specific in it’s definition of “covert agent” and the espionage act is about things not people. But he still thinks it’s a rotten thing to do, and hurts national security. So he indicts the leaker on a technicality, because if the law was written right, it would cover this.
Dear Jeff,
Thanks for the link to my fun with Galloway.
The one big question unanswered is was Plame still a covert operative. I have been arguing with some folks in the comments at my blog and one brought up the memo Colin Powell had on Air Force One which has Plame’s name and CIA affiliation in a paragraph classified Secret. They argued that this proves she was covert, but when I read it a light bulb went on because it actually proves she wasn’t.
I held a clearance for 15 years and if she was still a covert agent her status would have been classified at least Top Secret and probably code word or compartmented. If it was only Secret she was not a covert operative, but it would mean Scooter leaked classified info. I have a fuller explanation at the link that shows how this explains some of the other outstanding issues:
Fitzgerald: No crime to name Plame
Cordially,
Uncle J
Jeff:
the “classified†status for a CIA agent is pretty pedestrian stuff.
I’ve heard this enough to respond, put your money where your mouth is.
Obtain federal security clearance, obtain information identifying the status of a CIA agent, and release it to the press.
If it’s all harmless fun, as you say, you could claim you were doing it for All Hallow’s Eve, and no harm will be done.
I’ve got a ‘61 Petrus right here (protein wisdom for ya) that says you wouldn’t dare.
Pete Terell
Silver Springs
If you haven’t already, give Levin a listen @ wabcradio.com 6pm weekdays.
He’s got the voice of a helium vendor but he delivers insight often weeks in advance of even the blogs.
Bright man + sharp tongue = good radio.
Pete, ya might want to hang onto yer Ripple. I had a Secret clearance when I was active duty and I don’t even blink anymore when I see materials and information I receieved marked “secret” being used as color and veracity in television programs and paperback thrillers these days, and I’m talking about communication security and NBC information.
A Reporter ask if Fitzgerald had sought any other indictments. His response was roughly” They are telling me not to answer that question.” My impression is Fitzgerald tried the “Plame is Classified” line with the GJ to Indict Libby and Official A and it didn’t work.
Pete Terrell and other non-understandlings –
The White House did not bring up Plames name to “punish” that asshole egotist Wilson, but rather to point reporters in the direction of the truth. Wilson was lying, and Plame WAS involved in sending him to Niger. The CIA admitted that it had assets in place that could have taken care of the job, but for some bizarre reason decided to send an ex ambassador to do their work. If you are familiar with all the facts that are available, it is quite obvious that there were people at the CIA who were hell bent on destroying the Presidents foriegn policy – one bite (or should I say “byte”?) at a time.
Wilson never filed a written report, was never sworn to secrecy, and was debriefed at his OWN HOUSE by ONLY Plame and two other un-named agents. He told the American public one thing, but then told the Senate Intelligence committee another, WHEN HE WAS UNDER OATH. Most importantly, HE IS NOT CIA! If this is how the CIA works, it should be called The Mickey Mouse Club, and you should change your name to Mickey if you agree with this utter bullshit.
If Libby lied, he lied and must face the music. But don’t use his alleged lies to give substance to a bunch of baloney spouted by the very people who created this ridiculous partisan mess. It is not a worthy undertaking foer a sentient human being.
Pete Terrell,
Look at the comment above you and go to the link AND READ IT!!
Classified can mean from “Confidential” to “Code Word”. Routine communications between stations and/or bases is routinely classifed “Confidential”.
Classified is pedestarian stuff.
Here’s what I think about the whole indictment thingy. Hint: Fitz is the Policeman.
One bright day in the dark of night
Two dead boys got up to fight
They stood back to back
And faced each other
Drew their swords and
Shot each other
A deaf Policeman heard the noise
And came and killed the two dead boys
Now if you don’t believe my story’s true
Just ask the blindman – he heard it too.
rls,
Somehow your poem makes me hungry for a soup sandwich after which I will put on my bowling cleats, open the screen door on my submarine and swing my football bat.
Cordially,
Uncle J
Correction. Last line should read:
Just ask the blindman – he saw it too.
Uncle J,
You got a submarine???
WOW!! Can we go bungee jumping some time??
There’s an argument used by Andy McCarthy that doesn’t fly, IMO. (And I will repeat for the record that I am not a lawyer.)
McCarthy stated that if a person’s employment status with the CIA is classified (Plame), knowledge of that status is gained in an official capacity (Libby), and disclosed to a person not entitled to receive classified information (Libby discloses to Miller), then it “potentially makes out a violation of the espionage act.†He then suggests Fitzgerald used discretion in not charging Libby with an Espionage Act violation due to “the benefit of the doubt on [Libby’s] mental state [willfulnessâ€â€an element of the crime] (and for policy reasons pertaining to overzealous enforcement of the espionage act).â€Â
Now, if this is the case, then such an argument raises doubt as to the need for the Intelligence Identities Protection Act of 1982, as the IIPA is more narrowly tailored than the Espionage Act, as an IIPA violation requires that identity as a “covert agent†(Sec. 606 [50 USC 426]) be disclosed to a person not entitled to receive such informationâ€â€not merely that such employment status is classified.
The pertinent section of the Espionage Act (18 USC 793) is as follows (and I will point out the obviousness of the subject of the actâ€â€espionage, or spying on the US, an act Libby was most certainly not engaging in):
(d) Whoever, lawfully having possession of …information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates…the same to any person not entitled to receive it …
Shall be fined under this title or imprisoned not more than ten years, or both.
[using ellipses to improve readability.]
I would argue that violation of the IIPA could lead to an Espionage Act violation, as the identification of a “covert agent†would be presumed to be injurious to the US, or advantageous to a foreign nation, but that the disclosure of information deemed “classified†does not surpass such definitional hurdle. The legislative history would make this argument clearer, but the IIPA was enacted in the wake of the Philip Agee disclosures. Reading the Espionage Act as broadly as McCarthy does, IMO, eliminates the any need for the IIPA.
In a similar vein, with such an expansive view of the Espionage Actâ€â€utilizing the phrase “willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive itâ€Ââ€â€Sandy Berger’s destruction of classified documents would qualify as an Espionage Act violation. Sandy Berger may be guilty of many things, but most certainly not the Espionage Act.
Finally, if we end up in an environment where critics of an administration can make deceitful allegations, that go unrequited because the answers are classified, e.g. CIA employee nepotism leads to fraudulent consultant findings, then we are the worse off for it.
The irony is that the press lives off leaked information, especially leaked classified information. Yet, the press is leading the bandwagon to prosecute the leaking of truthful information; information leaked to counteract the false narrative reported by the pressâ€â€a false narrative that persisted because the media took (and takes) an active role in opposing the President and his policies. Criminalizing policy disputes strikes me as Orwellian.
So “classified” doesn’t necessarily mean “unknown to the public.” See the case of the “classified” NYT.
Libby still could have known about the Wilsons PRIOR to getting the internal scope via official channels. They could have just been collaborative and did confirm the nepotism angle. Of course, it wasn’t “nepotism” for money but “nepotism” for someone you could trust – in this case, to do the dirty work during an election.
Ultimately, this is about lying to the GJ about lying to reporters.
I’m betting that the charges will be dismissed or that Scooter will beat them in court.
Once more, with feeling –
Valerie Plame worked at the CIA – NOT ClassifiedHer being employed by the CIA is not classified for the following reason: If you were interested in who Joe Wilson’s wife was and where she worked, you could find their address through public records and follow Ms. Plame as she drove to Langley.
Valerie Plame working in Counter-Proliferation at the CIA: Classified
If you followed Valerie to work, you could not walk in with her past security to find out what job she had at the CIA.
The specific work she’s doing is classfied *and* the fact that she’s doing that work at all is classified.
Valerie Plame’s Status as a <b>Former Undercover Agent </b>- Classified – Higher Level codeword)
Valerie Plame was not an active covert operative at the time of the Novak article, nor was she referred to as a former covert operative by Novak or Libby. That information came from Wilson.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Codeword clearance involves a whole ‘nother order of magnitude to security issues – none of which were involved with Libby (but which were directly involved with Good Ol’ Sandy Berger)
To put this ‘classified’ issue in context – Geraldo’s revelation of the general intended movements of the unit he was embedded with nvolved ‘classified’ material.
Lastly, regarding Ms. Plame – the relevant issue regarding her covert status is not when Jeff Goldstein and the Commentariat learned that Plame was a former NOC agent – who cares?
The relevant issue is when foreign intelligence services learned that Ms. Plame/Wilson was an asset of the CIA working undercover.
Lest we forget, per the Media Court Brief at the start of this debacle back in 2003/4, Ms. Plame was twice outed as a Covert agent in the mid-90s, one time involving the government mishandling classified documents in Cuba.
So, whatever her accomplishments as a NOC, Plame was already damaged covert goods by the time she met and married Joe Wilson.
The US public didn’t know that – but that doesn’t really matter.
The person who popularized Valerie’s status as a former NOC was her husband.
Every major media organization including those leading the charge against Bush/Rove/Libby has signed on to a court brief arguing that no crime was committed. See I’m A Little Slow. Makes an interesting contrast to their “reporting”.
My favorite line from the indictment:
Prior to July 14, 2003, Valerie Wilson’s affiliation with the CIA was not common knowledge outside of the intelligence community.
As I note here, “not common knowledge” is weaselly crapola.
Pundits have noted today that it may cost Libby $1-2 million to defend himself, even if he is ultimately found innocent. What person of ordinary means would dare any more to enter the viper pit of Washington?
I just don’t understand the false statement charges. Reading the indictment, it comes down to he said/she said.
How the hell is this going to work out at a real trial?
Just finished the perjury part…and its the same thing.
They have to be false statements because the reporters said different.
It has to be perjury because the reporters said different.
Not a lawyer, or play one on TV, but everyone is saying these are strong indictments. Unless there is a recording of these conversations with reporters, I just don’t see it.
There is just no real proof, absent recordings, of what was said.
If everyone will idulge me here, something I was wondering about – is the term “NOC” legitimately a term of art within the intelligence profession, or is it like “mole,” a term that may arguably have made it into tradecraft speak via the popularity of Le Carre’s works? Related question – would NOC have the same meaning as the Cold War term “illegal” used to have when applied to KGB and GRU operatives?
I ask only because so many of you have expertise in the realm of intelligence work, and because I’d genuinely like to know.
RS,
I can’t say if the CIA has superseded it, but it was at one point the correct term. I imagine they have several other admin terms that are used internally, like all bureacracy.
NOC- Non-Official Cover
It differentiates from those having legit positions while spying. You are correct in comparing NOC to illegals.
Cordially,
Uncle J
Uncle Jimbo – many thanks! And congrats, incidentally, on your interview with Galloway – it was a pleasure to read.
Tim Russert is such an excellent source to pin an indictment on. cough Tim, a former aide to a Democratic US Senator from New York is like totally nonpartisan.
I have this bridge in New Orleans I want to sell you. Cheap.
TW: born, as in: “Come on, I wasn’t born last night.
MEME Alert:
The retraction by the administration regarding the SotU ‘16 words’ was due to sourcing issues specific to the State of the Union.
The Bush Team never backed off the claim that Iraq sought to purchase uranium in Africa, neither have the Brits.