John Bolton: A Rook in the Plame Scandal

In my last essay, I noted that the members of the Bush administration that belonged to the Office of the Vice President and the White House Iraq Group could be viewed as players on a chess board. Karl Rove, "Scooter" Libby, and VP Dick Cheney are the most obvious pieces on the board, but they are not the only ones we should be watching. I thought that today, we might look at John Bolton.

It's hard to keep track of all of the players, if we reply exclusively upon the corporate media. There are times those sources provide contradictory, and even inaccurate, information. More, as I have mentioned several times since April, the OVP/WHIG has been engaged in a disinformation/smear campaign that can cause confusion for the general public. Let's look at just one example.

One of the best journalists in the corporate media, in terms of the Plame scandal, is MSNBC's David Shuster. His reports on Hardball and Countdown have provided the public with some of the most accurate information on the Plame scandal. Because of the hard-hitting nature of his reporting, he has become one of the least favorite reporters among Dick Cheney's circle of friends. As a result, the republican jackals try to discredit our friend David.

Can we combine these two issues? Let's consider the example of David's reporting on July 21, 2005 on the nomination of Mr. Bolton to serve as US Ambassador to the United Nations. Even in the context of the neoconservatives in the Bush administration, Bolton was noted for having a highly toxic personality that is ill-suited for that position. But Shuster wasn't focused on personalities; he reported that John Bolton had been questioned about his connection to the infamous State Department memo that was sent to Secretary of State Colin Powell on Air Force 1 in July, '03.

This was significant, because Bolton had not listed this on the questionnaire he had filled out for the Senate Foreign Relations Committee. Shortly after Shuster's report was aired, an official from the Rice State Department denied it. Senator Joseph Biden wrote to Rice, requesting that she encourage Mr. Bolton to provide an explanation.

State Department spokesperson Sean McCormack told reporters, "Mr. Bolton, as part of the nomination process, supplied an answer to the question" about if he had been interviewed as part of any investigation. "Mr. Bolton, in his response on the written paperwork, was to say 'no.' And that answer is truthful then and it remains the case now."

The corporate media failed to nail the truth down. But the internet journalists I admire sure as heck did. Steven Clemons, of The Washington Note, noted on 7-25-05 that while CNN hadn't responded to TWN questions on the White House denial, MSNBC reported to TWN that their source on Bolton's being questioned was "unimpeachable."

Arianna Huffington had a report ("Plamegate: The John Bolton Connection") that noted Bolton's former chief of staff, Fred Fleitz, was "at least one of the sources" of the information on Valerie Plame that "flowed through the Bush administration..." She also noted that Bolton had a history of providing information to Judith Miller.

On July 29, 2005, Fox News reported that a "corrected version" of the SFRC questionnaire had been sent to Capitol Hill. Spokesperson Sean McCormick noted that Bolton had indeed answered it "truthfully and accurately" the first time. "Mr. Bolton certainly wishes he hadn't had to resubmit the form but he would characterize it as an honest lapse in memory." Hmmm, that sounds a lot like Karl Rove explaining why his truthful and accurate story to the Plame grand jury had to be updated. Both Rove and Libby have experienced those exact same "honest lapse in memory" on the details of their involvement in the scandal.

I had mentioned in my last essay that Woodward & Bernstein had experienced a problem in reporting on the Watergate scandal, which resulted in people like Spiro Agnew and Bob Dole complaining that the Washington Post had violated the moral laws of the universe. I thought it would be interesting to see what Mr. Woodward had reported about John Bolton in his two pep-rally books about the Bush administration, "Bush At War" and "Plan of Attack." I was shocked to find that in a combined total of 843 pages, Woodward only mentioned Bolton once.

On page 160 of "Bush At War," he wrote, "John R. Bolton, the undersecretary of state for arms control and international security, was dealing with the Uzbeks." Woodward noted that VP Cheney used this information as "a shot at Powell," in part of the larger power struggle going on within the White House. It didn't seem like a lot of information from Bob Woodward, but then again, he came up in the Plame investigation for being a little less than truthful and accurate in his reporting on the Plame scandal. Probably one of those honest lapse in memory we hear so much about these days.

Next, I thought we should look to Carl Bernstein, who unlike Woodward seems a decent and honorable man. I looked at his recent article "Senate Hearings on Bush, Now," from Vanity Fair. He wrote, "The first fundamental question that needs to be answered by and about the president, the vice president, and their political and national-security aides, from Donald Rumsfeld to Condoleezza Rice, to Karl Rove, to Michael Chertoff, to Colin Powell, to George Tenet, to Paul Wolfowitz, to Andrew Card (and a dozen others), is whether lying, disinformation, misinformation, and manipulation of information have been a basic matter of policy -- used to overwhelm dissent; to hide troublesome truths and inconvenient data from the press, public, and Congress; and to defend the president and his actions when he and they have gone awry or utterly failed."

Bernstein advocates having the Senate ask Colin Powell tough questions about how this country was brought to war in Iraq. Carl notes that there was friction between VP Cheney & Co., and Powell and his friends Dick Armitage and Larry Wilkerson.

Patrick Buchanan knows a thing or two about using the power of the White House to manipulate the media. I looked in his book "Where the Right went Wrong" to see what he had to say about Bolton. He lists Bolton as one of "a clique of foreign policy specialists, academics, and writers who see U.S. and Israeli interests as identical." He notes that Bolton was one of the people signing the PNAC letter to President Clinton urging him to make the overthrow of Saddam the center of US foreign policy. Buchanan writes that Bolton, along with Wolfowitz, Libby, Feith and Wurmser helped VP Cheney build the case for invading Iraq; in fact, he quotes a foreign paper that told that Bolton told Israeli officials he had "no doubts" the US was preparing to invade Iraq in February, 2003. (See pages 44-46) Seymour Hersch also noted on page 346 of "Chain of Command" that Israeli intelligence was using Bolton to funnel information on Iranian weapons programs to the White House.

The WHIG carried out the VP's media operations. But Dick Cheney and his friend Donald Rumsfeld also had intelligence operations. The best known was the Office of Special Plans, which operated out of the Pentagon. But, according to Joseph Wilson's book (page 432), John Bolton ran a closely related operation while he worked at the State Department. How might this relate to the Plame scandal?

In "Chain of Command," Seymour Hersch writes about the OSP bypassing the normal checks and balances of the intelligence community. He describes how Colin Powell had attempted to provide daily intelligence briefs from the more structured Bureau of Intelligence & Research (INR) for people including Bolton. Greg Thielmann provided the daily briefings for Bolton; however, Thielmann found that Bolton "seemed troubled because INR was not telling him what he wanted to hear." Soon, Thielmann was refused entry to Bolton's morning staff meetings, because "the Undersecretary wants to keep this in the family."

Bolton had demanded sensitive intelligence not normally provided to people in his position. This is because the CIA and INR usually would analyze the "raw intelligence," and provide it in proper context for others. Bolton was demanding the raw intelligence.

An example of the confusion that can result when raw intelligence is taken out of context would be found in VP Dick Cheney seeing a report that claimed Iraq had attempted to buy yellow cake uranium from Niger. Cheney brought this topic up during one of his daily CIA briefings. Two days later, the CI briefer informed him there was nothing to the report. Cheney, according to Hersch, requested the Agency look into the report further.

What kinds of things were so sensitive that Mr. Bolton would not want Mr. Thielmann to know about them? What “family secrets” was he intent on keeping hidden? One possibility is found in James Moore’s October 21, 2005 article from TomPaine.Common sense, “Fitzgerald’s Historic Opportunity,” in which he writes that “Fitzgerald has reportedly asked for a copy of the Italian government’s investigation into the break-in of the Niger embassy in Rome and the source of the forged documents.” Moore tells of how the notorious Niger forgeries turned up after a December 2001 meeting in Rome of Michael Ledeen, Larry Franklin, Harold Rhodes and Niccolo Pollari, the head of Italy’s intelligence agency. This meeting, and indeed this group of people, is at the nexus of the Niger documents and the neocon/AIPAC spy scandals, both closely related to the Plame scandal.

We know from “The Politics of Truth” that when the State Department produced a “fact sheet” in late 2002, to outline concerns about WMD programs in Iraq, that Bolton slipped in a reference to the Niger yellow cake. Another official caught the reference, and knowing that it was not considered true, removed it from the document. In March, 2005, Rep. Henry Waxman requested that the chairman of a House subcommittee on national security examine why Bolton’s role in putting the bogus Niger-Iraqi “connection” into the State Department fact sheet, and why Bolton’s role had been concealed.

A short time after Bolton pushed to have the yellow cake lies included in the fact sheet, President Bush delivered his infamous “16 words” in his State of the Union address. When the US claims were questioned in the international community, Colin Powell was told to deliver a speech at the UN similar to UN Ambassador Adlai Stevenson’s during the 1962 Cuban missile crisis. He was pressured by, among others, VP Cheney and Scooter Libby to include information he did not believe.

In “Plan of Attack,” Woodward details how, in researching the speech, Powell went to CI headquarters on Saturday, February 1, 2003. He found information that troubled him. The next day, he convinced his friend Dick Armitage to go to the Agency to review it with him. Powell did not mention the Niger yellow cake lies in his UN address.

After Wilson exposed the OVP/WHIG in his NY Times op-ed, Bolton began saying that WMD wasn’t “really the issue” that brought the US to war in Iraq. In his September 14, 2003 op-ed in the San Jose Mercury Times, Wilson exposed Bolton for this twisting of fact.

Still, by and large, Bolton and the others who were responsible for pushing the forged Niger documents, and lying to the American people about the reasons this country invaded Iraq, have been rewarded. Bolton is surely the last man in the United States who should be representing our nation in the United Nations.

I think that David Shuster would do well to give the American public an update on Mr. Bolton’s role in all of this. He is one of the few journalists who is willing to expose the extent the OVP was involved in this scandal. In the mean time, the public does well to keep up to date on the various internet sites that report on the Plame, the Niger forgeries, and the neocon/AIPAC spy scandals.

Mystery & Manners

On February 4, 2006, I posted an essay titled "Your Move" on my blog and on two political forums. In it, I described the on-going investigation into the Plame scandal and the Libby pre-trial hearings as a chess match. Most people can look at the Bush administration, and identify who is the king, the queen, the bishops, knights, rooks, and the pawns, on that side.
Likewise, it is easy to identify Patrick Fitzgerald as the most important player on the other side. As time goes on, it is becoming apparent that there are others playing significant roles in this contest. I thought it might be interesting to make a quick review of this topic, and try to apply it to some of the recent developments in the case.
There are three general parts to a chess match: the opening, the middle game, and the end game. It is common for a player to bring out their pawns, bishops, and knights quickly; to castle early to protect their king; and to try to control the four center squares in the opening of a chess match. This is so that they can arrange their players in the strongest possible position for the battle that develops in the middle game.
In setting up one's players, it is important to be fully aware of all of the pieces on the board. One cannot, for example, take a pawn for granted. Thus, as the contest between Fitzgerald and the Office of the Vice President (OVP)/White House Iraq Group (Whig) begins to heat up in the middle game, I think we would do well to look beyond those four center squares. It's tempting to focus exclusively on Libby and Rove -- and especially Cheney -- but let's start with Dick Armitage.
In mid-May, there was a report that Mr. Fitzgerald had placed Dick Armitage in his cross-hairs. A number of people from two political forums e-mailed the report to me, because they knew I had done an essay on Dick in July '05, "The Unknown Soldier," which can still be found on my blog. I had noted then that the OVP/WHIG had come to blame Mr. Armitage for many of their problems, and that this included their belief that he was the source of some of the leaks to the media that they believed damaged the case the OVP/WHIG made for invading Iraq.
I do not think Mr. Armitage can or should be viewed as a champion of progressives/democrats. However, those familiar with his experiences in Vietnam recognize that he is a different breed than fellows like Dick Cheney, Scooter Libby, Karl Rove, or George W. Bush. And so the rumor that he was a target of the investigation was of no concern. Within a brief period, Editor & Publisher.com had an article "Armitage Key Witness in Libby/CIA Leak Case?" (5-21-06) that correctly noted that Dick had "emerged as a key witness" who "could hurt" both Libby and Rove.
In a related report, the New York Daily News (5-23-06) featured "2 in CIA to testify Libby lied on leak," by James Gordon Meek. The article noted that two top CIA officials would help the prosecution expose I. Liar Libby as being dishonest on his claims that he was unaware of the status of Valerie Plame. Those familiar with my writings on the case will recall that when some questioned if Ms. Wilson was indeed a covert CIA employee, I stated several times that the first witness that Mr. Fitzgerald had brought before the (first) grand jury was a high-ranking CI official, who had clarified the Agencies' reasons for requesting the DoJ investigation into the leaking of her identity. This was confirmed, in large part, in Michael Isikoff's 2-13-06 Newsweek article, "The CIA Leak: Plame Was Still Covert." ("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...")
When the jury hears the testimony of Craig Schmall and Robert Grenier, they will know that Libby is lying about virtually everything he has claimed to the FBI investigators and grand jury. The jury will begin to appreciate the size and scope of the operation the OVP/WHIG was running to damage both Mr. and Ms. Wilson.
Another area that I find fascinating, and which shows that Mr.Fitzgerald is not the only player opposing the OVP/WHIG, is the series of filings and hearings regarding Team Libby's attempt to put the media on trial. This part of the chess match featured Team Libby going against attorneys for NBC, Matt Cooper, Judith Miller, Andrea Mitchell, Time, and the New York Times. Judge Walton elected to hold some hearings in camera, and to examine a number of the disputed documents to determine if they were material to the case.
Judge Walton issued his Memorandum Opinion on 5-26-06. The 40-page document will be the subject of one of my next essays. I will say that I find it an important ruling, for a number of reasons. I think that this part of the Libby case posed significant Amendment 1 issues, and think more supporters of a free press should have taken a closer note of the risks that were involved. (I would compare it to the neocon/AIPAC spy scandal, which people mistakenly believe involves Amendment 1 issues, because they have accepted the lies of people involved in the espionage. Yet no journalist is charged in that case, just a government official and two people engaged in "private" intelligence operations.)
The ruling was also of interest because Team Libby appeared to be making moves that would be grounds for future appeals after Scooter is convicted. Keep in mind that appeals are based upon the process, not on guilt versus innocence. I believe that Judge Walton closed the door on this area for the Libby lawyers. Of course, they may try, but Judge Walton was more than fair to the defense.
The case involves the media in a number of ways. It goes beyond Chris Matthews calling Joseph Wilson to warn him about Karl Rove's activities. It's more than Libby calling Tim Russert to complain about Matthews' reporting, and then lying to investigators about the call. And it goes deeper than Judith Miller's failure to report to her editors, while she spread lies forthose pulling her strings. On 4-25-06, in my essay "Leaks in Perception," I wrote about how forces from the OVP/WHIG were involved in a campaign to manipulate the coverage of the Plame scandal. I warned that they were preparing for a new offensive in May.
This attempt to spread disinformation goes beyond clowns like Byron York, who can be found on Fox News, on the National Review, and on Scooter Libby's Defense Trust's internet site, claiming that Libby is an American hero, that the charges against him are weak, and attacking those who want justice to be served to all of those involved in the operation to damage the Wilsons. There has been controversy about reports on Truthout that Karl Rove had been indicted. To be fair, I will say that several people -- myself included -- had been told that Mr. Fitzgerald was preparing to focus the grand jury on the role of Rove on May 10 and 12. I believed that it was likely that Karl would be indicted. I do not know what his current status is. I believe that in time this will be viewed as being of the similar significance to the Washington Post's report on Hugh Sloan, Jr.'s grand jury testimony. (Readers may recall that Bob Dole attacked the WP, saying things like, "The Post's reputation for objectivity and credibilityhave sunk so low they have almost disappeared from the Big Board altogether.")
I do know that "Maury & Connie" are attacking Truthout as I type this. Odd that they have not invited Bob Dole or his most recent incarnation, Senator McCain, on toserve as attack dogs. I note that they ignore the more important news, which involves Vice President Dick Cheney's involvement in the Libby case. Far from disappearing from the Big Board, the Washington Post features an article today, "Filings in CIA Leak Case Paint Cheney as Determined to Counter Critic."
There have been a number of interesting essays on the latest court filings, which include discussion on the possibility of Mr. Fitzgerald calling Cheney to testify in Libby's trial. The filings include information on the devastating copy of Wilson's NYT op-ed, with Cheney's notations, as well as parts of Libby's grand jury transcripts. Reading these documents leaves one with the feeling that Mr. Libby will be found guilty beyond any doubt.
What I think may be the most significant part is found in Mr. Fitzgerald's 5-24 Reply to Team Libby's Response, regarding Cheney's copy of the op-ed. In it, Mr. Fitzgeral makes four references worth looking at: (1) "Defendant then testified that the Vice President told him repeatedly that he wanted to 'get the truth out,' including 'all the facts about what he had or hadn't done; what the facts were or were not" {pg5}; (2) "... his immediate superior, who also directed defendant during the critical week after July 6 to get out into public 'all' the facts in response to the Wilson Op Ed," {pg6}; (3) "By his own account, defendant understood from the Vice President that it was necessary to get out 'all' the facts in response to the Wilson Op Ed," {pg8}; and (4) "... the Vice President communicated to defendant the facts he considered notable, and also directed defendant to get out to the public 'all' the facts in response to the Wilson Op Ed," {pg 8-9}.
I think it is interesting that Mr. Fitzgerald puts "all" in quotes four times. It might be that he suspects that VP Cheney directed Libby to release "all" the information to journalists that he did.

Of Reason & Knowledge

Kahlil Gibran wrote that, "Reason is a prudent minister, a loyal guide, and a wise counsellor. Reason is light in darkness, as anger is darkness amidst light. Be wise -- let Reason, not Impulse, be your guide." I found Gibran's recommendation to be of value as I read a number of the discussions on two of my favorite political forums this weekend. On both the Democratic Underground and Daily Kos, there were fascinating debates about two Plame scandal issues: the case of Karl Rove, and the release of VP Dick Cheney's copy of Joseph Wilson's New York Times op-ed.
While much of the discussion overlapped on both forums, for the sake of this essay, I will look at the DU threads concerning a possible Rove indictment, and a particularly well thought out diary on Daily Kos by "emptywheel" regarding "Fitzgerald Collecting Cheney's Smoking Guns." Let's start with the Rove controversy.
At the end of last week, there was great anticipation that the grand jury might indict Karl Rove. This included advertisements on MSNBC, promising Friday night coverage on two of their top news shows. I had certainly looked forward to seeing David Shuster's take on the status of Mr. Rove, as well as his thoughts on the most recent filings in the Libby pre-trial hearings. But there was no mention of the Plame scandal to speak of.
The void was filled, however, with a few threads speculating on what may have happened, and then links to a Truthout report by Jason Leopold, that stated Rove had told White House officials that he anticipated being indicted. This was followed by a series of threads which expressed, often heatedly, both support of Leopold, and distain for him. And then a couple of threads linked a report that Rove had indeed been indicted, and some debates about the accuracy of Leopold's claim.
There were two threads that included statements by Larry Johnson, which supported the stance taken by Truthout. By late Sunday, however, there were other threads in which the discussion had degenerated from a sober debate to drunken nonsense. A few people e-mailed me to ask my opinion on some of the issues, or to request that I add my two cents to the quarrels. I'll say that an important point was made last October 26 on Hardball, when Chris Matthews was speaking with Time's reporter Mike Allen:
MA: Well, Chris, there's a lot of dead horses being beaten here. But there is a lot of activity happening that we're not seeing. What a likely scenario for what happened today is Patrick Fitzgerald got some indictments from this grand jury. He is now able to go ....
CM: Oh, you think they're sealed right now?
MA: It's very possible. What I'm told is typically in a case like this, he could get the indictments and now he can go to the targets and say, you can plead to these or I'll go back Friday and get more. You have 12-to-24 hours to think about it.
CM: I think you get a little Whitman's sampler of suggestions like you can plead to the process charge of obstruction or perjury. Or --
MA: Or I can add a bunch of counts. You can take a couple of counts, we can do a bunch more.
I am not saying this exchange from almost six months ago is an exact fit for the past week. But it is worthy of our consideration. It also, by no small coincidence, introduces us again to the idea that the on-going investigation focuses on two areas of interest. The first is "procedural" and includes issues such as a person attempting to interfere with an investigation, lying to FBI investigators, or lying to a grand jury. These are the things types of things that I. Lewis Libby has been charged with, and which it appears that Mr. Rove will likely be charged with this week.
The second area is "substantive" issues that can include outing a CIA agent, or disseminating classified information. What is interesting in the Libby case is that there are a number of instances where Scooter's attorneys seem focused upon defending against the substantive issues, even though he has not been charged with them. This has resulted in curious happenings in the pre-trial hearings, and the documents being filed by both the prosecutor and Team Libby.
In "Fitzgerald Collecting Cheney's Smoking Guns," emptywheel notes how the hearings and documents are producing a public awareness of the hands-on role that VP Dick Cheney played in the Plame scandal. Mr. Fitzgerald included, most interestingly, a copy of Wilson's July, '03 New York Times op-ed, with a series of questions Cheney wrote in the margins, along with several sections the vice president underlined.
At least one person stated that Cheney's notes were not necessarily of great significance, because there was no evidence if Cheney had spoken to others before he made them. Actually, in his 5-12 Response to the Court's questions on this, Fitzgerald noted, "The annotated version of the article reflects the contemporaneous reaction of the Vice President to Mr. Wilson's Op Ed article..." The diary made it clear that "emptywheel" was fully aware of Mr. Fitzgerald's discription of the significance of the Cheney notes, even if others are not.
After reading this, I went back to review two quotes from the October 28, 2005 Libby indictment that I think are important to keep in mind when looking at VP Cheney's notes on the Wilson op-ed:
"5. On or about June 9, 2003, a number of classified documents from the CIA were faxed to the Office of the Vice President to the personal attention of LIBBY and another person in the Office of the Vice President. The faxed documents, which were marked as classified, discussed, among other things, Wilson and his trip to Niger, but did not mention Wilson by name. After receiving these documents, LIBBY and one or more other persons in the Office of the Vice President handwrote the names 'Wilson' and 'Joe Wilson' on the documents." (page 4) ....
"9. On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division. LIBBY understood that the Vice President had learned this information from the CIA." (page 5)
Now that brings us back to the October 26, 2005 Hardball. Republican attorney Brad Blakeman was telling Chris Matthews that the White House was simply upset by Joseph Wilson's attack on the president, and the role his wife played in sending him on the Niger trip.
BB: ....I think you have to look at the timeline and look at people's intent, because a crime requires the act of the crime. And also your mental state. You know, the Wilson op-ed comes out in 2003. July 6. And then a week later, the Novak article comes out. Sothere's hardly time for a cabal within the White House. ...
CM: Unless they knew about it before.
Clearly, the information that has come out in the Libby indictment and in the pre-trial hearings and documents shows that Mr. Fitzgerald has documented "they knew about it before." More, that the vice president played a significant role in the planning of the attacks on Joseph Wilson and Valerie Plame.
And Reason would tell us that is substantive, indeed.

Scooter & His Discontents

On May 8, 2006, four documents were filed in the United States District Court for the District of Columbia, involving an important part of the trial of I. Lewis Libby. These all involve Team Libby's attempt to subpoena a wide range of information from journalists and corporate media sources. The four documents make strong cases for Judge Reggie Walton to "quash" (meaning to nullify, or to extinguish, summarily and completely) Team Libby's subpoenas.
The four documents were filed by lawyers representing Judith Miller; Matt Cooper; Andrea Mitchell and NBC News; and Time. Before we take a closer look at them, let's review what they are, in general terms. In this case, much like any public meeting or hearing, there is a benefit in having a formal structure. This is especially true when there are disputes being discussed. One of the ways that structure is given in parliamentary law is to have "points of order." There are literally hundreds of points of order, and those who master them tend to make the best attorneys and elected officials.
In the Libby case, people have likely picked up on a sequence in the documents that are being filed. One side files a Motion; the other side files a Response; and then the first side files a Reply. After the Reply, the judge might hold a hearing, or he might issue a ruling.
If he holds a hearing, it could be in open court, and thus become part of the public record. We've had this already in the pre-trial hearings where Team Libby and Mr. Fitzgerald openly debate issues. The most interesting thing that has come out thus far from these hearings was when Mr. Fitzgerald noted that Scooter had testified to the grand jury that both President Bush and VP Cheney had okayed his revealing the classified NIE to journalists.
The judge can also hold hearings "in camera," which is Latin for "in his chambers." There is usually a stenographer there recording the hearing. The judge can afterward decide if the hearing should be put on the public record, or if he should "seal" it due to information that is sensitive, or potentially damaging to a witness not on trial, or if that information could cause prejudice towards one side in the trial. In the documents filed, the journalists' attorneys have requested that if Judge Walton does decide to hold further hearings, that they be in camera.
Now to the interesting part! In March, Team, Libby issued subpoenas to a number of journalists and media corporations. They demanded a wide range of information, including notebooks, unpublished articles, telephone logs, etc. Team Libby stated that these things were needed to "attack the government's case and prove his innocence at trial."
This has created a conflict, because the rules involved for subpoenas involving potential witnesses, is very different from the rules involved in "discovery," when the defense is able to request access to the information that has been gathered by the prosecutor. In the recent past, I've discussed things like the Brady rule (from Brady v. Maryland), which was important in my friend Rubin Carter's appeals. "Discovery" is generally broad, allowing the defense access to information that is potentially helpful and/or harmful to their client's case.
Subpoenas like those Team Libby issued have to be far more specific. Let's look at a section of Miller's 4-18 Motion to get a better sense of this:
"In United States v Nixon, 418 U.S. 683 (1974), the Supreme Court adopted a multi-prong test for a district court assessing the propriety of a Rule 17(c) subpoena. Namely, the party issuing the subpoena must show:
(1) that the documents are evidentiary and relevant;
(2) that they are not otherwise procurable in advance of trial by exercise of due diligence;
(3) that the party can not otherwise properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and
(4) that the application is made in good faith and is not intended as a general 'fishing expedition.'
"Id. at 699-700. Thus, the defendant 'must clear three hurdles: (1) relevancy; (2) admissibility; [and] (3) specificity'." (page 3)
Let's see if Team Libby meets those requirements, or if they are engaged in a "fishing expedition." On page 6 of the Time document, they note that "(a)lthough Mr. Cooper is the only Time employee identified as a potential witness, Mr. Libby asserts that he is entitled to know what other reporters and editors at Time knew about the Wilsons on the theory that 'evidence that Ms. Wilson's CIA affiliation was known outside the intelligence community is critical to the defense.' ...But as Time pointed out in its motion, this theory has no stopping point." Not only does this fail in the sense that Scooter could, in theory, subpoena every blogger on earth, "just in case" they knew something about those darned Wilsons, but it is not relevant to the charges that Libby has to answer to.
Admissibility? Consider footnote 6, on page 4 of the Miller Reply: "Also, as we point out in our opening brief and which Mr. Libby does not contest, his requests are precluded by the Court's prior ruling that such information is immaterial to any claim of defense. (Mem.Op. of March 10, 2006 at n.3). The prior ruling constitutes the law of this case."
More, Libby claims he will use information that may be in various files "to show whether it is Mr. Libby or the reporters who have misstated or misrecollected the facts." He needs it to show that "it was Ms. Miller who raised this topic (Plame) in her discussions with Mr. Libby -- if the topic was raised at all." Miller's Reply notes, "To the extent Mr. Libby has specific information establishing the information he demands is relevant and admissible, it is incumbent upon him to present it to the Court now, in support of his subpoena. He makes no such attempt." (page 4)
Regarding specificity, the NBC Reply notes Libby's "case rests entirely on serial speculation -- i.e., if Ms. Mitchell knew about Ms. Wilson and her employment prior to July 11, and if Ms. Mitchell shared that information with Mr. Russert before he talked with Defendant, and if Mr. Russert then shared the same information with defendant, then her testimony 'would be important to the defense.' No link in this chain is supported by any document in the possession of NBC or Ms. Mitchell, and Defendant's speculation is refuted by the facts." (pages 4-5)
The four Replies show, without any question, that Team Libby is on a "fishing expedition." Consider two examples. First, they claim that Matt Cooper has a "pro-Wilson bias." They offer no evidence. More, they ignore that Cooper twice was willing to go to jail to protect his sources, until Libby and then Rove gave him permission to reveal the details of their conversations.
Second, footnote 3 on the Miller Reply states, "Mr. Libby claims that 'Movants admit' they have 'documents showing that [he] and other officials talked to reporters about Mr. Wilson ... but never mentioned his wife ...' (Response at 7). Ms. Miller has made no such admission, and has not located any such documents."
Cooper's Reply addresses Team Libby's frequent claim of the "constitutional dimensions" of his case, specifically his need for using the subpoenas in such a wide-ranging manner. The Cooper document points out that Team Libby completely ignores the Amendment 1 issues involved in the case. The four documents combine to make a strong case for Judge Walton to quash the subpoenas, for a variety of reasons including protecting the integrity of a free press.
Time refers to Libby's demands as "speculative and absurd." They note that Team Libby's "farfetched conspiracy theory cannot justify Mr. Libby's subpoena(s)." I think they are right, and I am confident that Judge Walton will rule in their favor.

Anticipating a Frog March in May

This morning might be a good time to examine some of the questions about how the Patrick Fitzgerald investigation of the Plame scandal could result in Karl Rove's being indicted. Indeed, the month of May, 2006 could hold the answer to Ambassador Joseph Wilson's question, "Wouldn't it be fun to see Karl Rove frog-marched out of the White House in handcuffs?" (The Politics of Truth; page 372) Let's take a closer look at "Official A" and the grand jury.
1-Q: How did Patrick Fitzgerald get involved with this case? Did it have anything to do with Karl Rove?
A: Several months after the CIA got the Department of Justice to investigate the leaking of Valerie Plame's identity, Attorney General John Ashcroft recused himself. A footnote found on page 173 of John Dean's wonderful book, "Worse Than Watergate," sheds light on why:
"A much-rumored source of the leak has been Karl Rove, who was a consultant to Ashcroft during one or more of his political campaigns and the person many believe secured Ashcroft his post as attorney general. For this reason, as soon as the investigation commenced, there were emands that Ashcroft either appoint a special counsel or recuse himself. He stalled as long as possible before finally giving way, sending more signals that he did not want this investigation to get out of hand."
After Ashcroft recused himself, his deputy James Comey, appointed Patrick Fitzgerald. Thus, there is an interesting relationship between Mr. Fitzgerald's role in the investigation, and Mr. Rove's role in the scandal.
2-Q: What was the goal of Mr. Fitzgerald's investigation? Are the right-wing experts like Sean Hannity and Ann Coulter correct in their belief that he was only supposed to investigate if anyone violated a specific statute regarding exposing a CIA agent's identity?
A: In his October 28, 2005 press conference, Mr. Fitzgerald answered this question. "So let me tell you a little bit about how an investigation works. Investigators do not set out to investigate the statute, they set out to gather the facts. It's critical that when an investigation is conducted by prosecutors, agents and a grand jury they learn who, what when, where and why. And then they decide, based upon accurate facts, whether a crime has been committed, who committed the crime, whether you can prove the crime and whether the crime should be charged."
As this case moves forward, there will be further attempts by the administration to distort the truth about this case. This will include weasals like Hannity and Coulter. It is worth noting that Fox News continues to use Newt Gingrich as an "expert" who gives analysis without revealing to viewers that he participated in the efforts to destroy Joseph Wilson and his wife.
3-Q: Was there an effort to destroy the Wilsons? Hasn't Bill O'Reilly said that this was just political hardball?
A: In his April 19, 2006 article "Walking the White House plank," Sidney Blumenthal noted, "Two weeks ago, Fitzgerald filed a motion before the federal court in the Libby case stating that his investigation had proved that the White House engaged in 'concerted action' from 'a plan to discredit, punish or seek revenge against' former ambassador Joseph Wilson, who revealed that the rationale of the Iraq war was based on false information that the White House knew was bogus. Fitzgerald declared further that he had gathered 'evidence that multiple officials in the White House' had outed his wife's clandestine identity to reporters as an element of revenge."
In early 2003, in a series of discussions known as the "Plame Threads" on the Democratic Underground forum, I had stressed to readers that they keep in mind Neitzsche's teaching about the importance of knowing not just "how/," but more importantly "why?" At his press conference last October, Mr. Fitzgerald noted, "What we're talking about is why -- the investigation was why someone compromised her identity."
In his May 8, 2006, Rove's old friend Bill Israel summed up "why" Rove savaged the Wilsons: "Ambassador Joseph Wilson and his wife, CIA operative Valerie Plame, were simply the most important bodies in the way." (Karl Rove's Lessons for the Press)
4-Q: Why has the process taken so long? Hadn't the FBI investigated the leak? Couldn't Mr. Fitzgerald have simply run the basic information by the grand jury, and gotten indictments?
A: There are two general types of grand juries. The most common can be used by prosecutors to hear any case that arises within its jurisdiction, where the prosecutor is seeking an indictment. The second type is an investigatory grand jury. In his October 2005 press conference, Patrick Fitzgerald states more than a half-dozen times that the Plame grand jury had investigated the leak.
This included the important issues involving journalists, such as Judith Miller and Matt Cooper, in a part of the investigation that involved Amendment 1 issues. It included appeals that went to the US Supreme Court. Mr. Fitzgerald noted that he had gone to Judge Hogan in a "detailed, classified, sealed filing" to be sure the grand jury investigation of the issues involving the journalists was proper. The federal courts all were supportive of Fitzgerald's efforts. Then, as he stated, "...as you sit back, you want to learn: Why was the information going out? Why were people taking this information about Valerie Wilson and giving it to reporters?"
The grand jury's investigation was slowed by things including the lengthy appeal by the journalists; by Judith Miller's incarceration; and by efforts to conceal the truth from the grand jury. At this point, Scooter Libby has been charged with lying to investigators and to the grand jury. It is believed that Karl Rove may soon be indicted on similar charges.
5-Q: How does the grand jury work? Why doesn't the public know more about what the grand jury has done?
A: Let's look at a few quotes from Mr. Fitzgerald's 10-05 press conference. "There's another thing about a grand jury investigation. One of the obligations of the prosecutors and the grand juries is to keep the information obtained in the investigation secret, not to share it with the public."
"And one of things we do with a grand jury is we gather information. ... but the grand jury doesn't give an announcement about what they're doing, what their looking at, unless they charge an indictment."
"So I think the only way you can do an investigation like this is to hear from all witnesses. ...And if we don't prosecute, we keep quiet. ...I don't think people fully appreciate how an investigative grand jury can be different. You know, sometimes you can -- fairly routine to go into a grand jury and say, 'Mr. Eckenrode is going to testify about a bank robbery. Here's a picture of the guy with the gun in his hand, with a note. Here's his fingerprint on the note. And here's his confession. You know, how do you vote?' This grand jury is very, very different."
6-Q: Do people often lie in these circumstances? Why would Libby and Rove lie?
A: Again, to quote Mr. Fitzgerald from the press conference, it's "important that witnesses who come before a grand jury who may be under investigation, tell the complete truth. ... And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime. ... And I'd say this: I think people might not understand this. We, as prosecutors and FBI agents, have to deal with false statements, obstruction of justice and perjury all the time. The Department of Justice charges those statutes all the time."
Thus, it appears that Libby and Rove have betrayed the public trust, and lied to cover up the truth about their participation in the campaign to destroy the Wilsons. They are common thugs. Shame, shame, shame on them.
7-Q: Yet some of the republicans are saying that Mr. Fitzgerald failed to charge anyone with the serious crime of exposing a CIA agent, and that I. Lewis Libby was charged with minor crimes. Is that a serious charge that diminishes what Mr. Fitzgerald has done, or is it mere spin?
A: Again, to quote Mr. Fitzgerald's press conference: "I'll be blunt. That talking point won't fly. If you're doing a national security investigation, .... (and a White House official) went before a federal grand jury and lied under oath repeatedly and fabricated a story ... and we prove obstruction of justice, perjury and false statements to the FBI, that is a very, very serious matter .... that, to me, defines a serious breach of the public trust.
"... at the end of the day, I think I want to say one more thing, which is: When you do a criminal case, if you find a violation, it doesn't really, in the end, matter what statute you use if you vindicate the interest."
8-Q: In the days before Scooter Libby was indicted, Karl Rove's attorney approached Mr. Fitzgerald with "new" evidence about how a conversation the attorney had with Vivica Novak had served to "refresh" Rove's memory about his conversation with Matt Cooper. It seemed like an attempt to make Rove's conversation with Cooper an isolated incident, which slipped his mind. Has any new evidence contradicted this?
A: Vivica Novak spoke with Mr. Fitzgerald twice, as detailed in "What Vivica Novak Told Fitzgerald," by Ms. Novak (Time; 12-11-05) Her story did not seem to support Rove's attorney's interpretation of events.
Also important, at the October press conference, a reporter asked about "some deferred e-mails that were produced by the White House very late in the investigation that, in fact, in part, triggered the expansion" of the investigation. Then, in February '06, Truthout broke the news that 250 pages of e-mails, apparently primarily from the OVP, had been recovered by the investigation. On April 7, Jason Leopold reported, "Rove did not disclose the communications when he was questioned" by the FBI or during his early appearances before the grand jury.Leopold reported that sources said the e-mails "contained suggestions by Rove ... on how the White House should respond to what it believed were increasingly destructive comments Wilson had been making" about the WMD evidence used to bring the nation to war in Iraq.
It is believed that Mr. Fitzgerald will ask the grand jury to consider charges related to the lies about his conversation to Matt Cooper. It is also likely that there is evidence indicating Mr. Rove lied about more than Matt Cooper.
9-Q: What do we know about this second grand jury?
A: Last December 14, MSNBC's David Shuster told Tucker Carlson the following: "First of all, it was a week ago today when he impaneled a new grand jury, presented new information, and again, prosecutors don't use new grand juries unless they want the panel to consider possible charges."
On April 26, 2006, both MSNBC and the Washington Post noted that Mr. Fitzgerald was beginning to hold sessions with the grand jury, after not meeting with them for several months. This was generally consistent with other reports by Jason Leopold on Truthout. Mr. Leopold had noted that the grand jury would begin to focus on the information it needed to consider if Mr. Fitzgerald were to ask them to return indictments. My reading of Mr. Leopold's articles has led me to conclude that sources close to the case have anticipated Mr. Fitzgerald would ask the grand jury to return indictments soon. I think that the process will begin this week, starting on Wednesday and perhaps Friday.
10-Q: How does a grand jury decide if Mr. Fitzgerald asks them to consider returning indictments against Karl Rove?
A: Let's look at what David Shuster told Chris Matthews on Hardball on October 26, 2005: "In order to indict, out of the 23 people who are assigned to serve on a grand jury, 16 on the panel must be present. At least 12 of those present must agree to the charge by answering in the affirmative to this question. ....
"At the DC federal courthouse, if the grand jury chooses to indict, the panel will move from the third floor grand jury room to a magistrate's courtroom on the first floor. There, open to the public, the indictment will be recieved by a judge who may choose to read part of it out loud before the charges are filed with the clerk."
If no indictments are returned, there will not be a press conference. But, if there are any charges filed, it is anticipated that Mr. Fitzgerald will meet with reporters. Indictments and pre-trial information is generally a matter of public record, and so we will learn more about what Mr. Fitzgerald has learned in his investigation. And, as he said in the Libby press conference:
"So I ask everyone involved in this process, anyone who participates in the trial, anyone who covers this trial, anyone sitting home watching these proceedings to follow this process with an American appreciation for our values and our dignity."

Anticipating a Frog March in May

Amendment 4 Blues

There is speculation that President Bush is planning to nominate General Michael Hayden to serve as the next director of the CIA tomorrow. Hayden, the former Director of the NSA and the Principal Deputy Director of National Intelligence, seems like a pleasant fellow. I have no doubt that he is sincere in his patriotism. However, I think that the DCI should be familiar with the US Constitution, including the Bill of Rights.
On Monday, January 23, 2006, General Hayden met with the National Press Club to discuss concerns about the Bush administration's domestic spying policy. Before we take a closer look at some of the Q&A from that day, let's review Amendment 4 to the Constitution of the United States.
Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrents shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now, to the press conference, in which General Hayden was attempting to answer journalists' questions about how the administration's domestic spying program appears to violate the 4th amendment. James Bamford asked General Hayden two questions towards the end of the conference.
JB: ... Just to clarify sort of what's been said ... the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?
GH: You got most of it right. The people who make the judgement, and the one you just referred to, there are only a handful of people at NSA who can make that decision. ... So in military terms, a senior colonel or general ooficer equivalent; and in professional terms, the people who know more about this than anyone else.
JB: Well, no, that wasn't the real question. The question I was asking, though, was since you lowered the standard, doesn't that decrease the protections of the U.S. citizens? ...
GH: ... I think you've accurately described the criteria under which this operates, and I think I at least tried to accurately describe a changed circumstance, threat to the nation, and why this approach -- limited, focused -- has been effective.
(At this point, the fellow serving as moderator recognized that James Bamford was not the person for General Hayden to be questioned by, if the "lower standards" issue was to be avoided. Mr. Hill announced, "Final question," and picked on Jonathan Landay from Knight Ridder.)
JL: ... I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --
GH: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
JL: But the --
GH: That's what it says.
JL: But the measure is probable cause, I believe.
GH:The amendment says unreasonable search and seizure.
JL: But does it not say probable --
GH: No. The amendment says --
JL: The court standard, the legal standard --
GH: --unreasonable search and seizure.

This press conference was filmed. Again, while no one questions that General Hayden is a good man, and a patriot, it was clear that he was not familiar enough with the Fourth Amendment to recognize a quote from it when he heard it. This may, in part, explain why he did not recognize that the NSA's domestic spying program was in violation of the U.S. Constitution. The news media, and progressives and liberals, should be using this film and the transcript to remind the American public, and the Congress, why General Hayden is not the correct choice for the position of Director of the Central Intelligence Agency

Scooter Dogg Gets Pounded

Judge Reggie Walton appeared to be setting limits on the defense strategy that I. Lewis Libby's attorney outlined in federal court yesterday. For many liberals/progressives, this comes as a surprise, because they had anticipated that the conservative judge would be prone to helping "Scooter" avoid facing consequences for his criminal behaviors. Before we look at some of the highpoints from yesterday's pre-trial hearing, perhaps it would be beneficial to review a couple things from Judge Walton's past.
Judge Walton is often the source of strong, negative reactions from liberals and progressives. I note, for example, that when Daily Kos member Cedwyn submitted a thoughtful study, "Libby's Arraignment Judge: Reggie Walton" (10-29-05), which documented the judge has delivered verdicts that range from good to bad, another member accused Cedwyn of being a right-wing stooge.
While Reggie Walton is not Malcolm X, neither is he Clarence Thomas. It is interesting to note that Judge Walton came from a very different world than, say, Scooter Libby and his "dream team" defense attorneys. He grew up in Donora, Pennsylvania, where he had a troubled childhood and youth. He was part of a street gang, and was arrested three times. As a teenager, he often carried a hand gun and a razor. Most of the people he hung with are now dead or in prison.
Walton himself was headed for the life of a flint-hard inmate, until an experienced changed his course. He was involved in a gang fight, where another young man was stabbed 9 times in the back with an ice pick. Walton brought the victim to an ER for treatment. He realized that if the boy had died, his life's options would also end.
Reggie Walton began to focus on his education. This proved difficult, because he had problems reading. Other students made fun of him. Walton began to find himself on the football field, and won an athletic scholarship to West Virginia State, where he was being watched by the Baltimore Colts. Then a physical injury ended his dreams of being a professional athlete.
Walton then focused on putting himself through law school. He worked part-time jobs, and put in long hours of study outside the classroom.
An article by Peter Yost in the Pittsburgh Post Gazette (11-27-05) tells of how Walton has invested a significant amount of time since he graduated college, going to juvenile detention centers, and working with young people heading in the wrong direction in life. He's not ashamed of his past, and he has not forgotten his roots. When young people tell him that there are no opportunities for them in life, he makes clear that he recognizes how hard their lives are, but that they can change.
I'm reminded of Malcolm saying that there is no shame in saying you used to be a drunk, a criminal, or used to live in the gutter -- but there is shame in saying you choose to continue to be a drunk, a criminal, and to remain in that gutter.
It can take a rigid discipline for people like judge Walton to change their lives. And that rigid discipline often translates into a lack of sympathy for those who make excuses for their criminal ways. Thus, Judge Walton has a history of being a rigid jurist, who hands out harsh sentences to those who lie to try to escape taking responsibility for their actions.
And that, of course, brings us to Scooter Libby, the child of privilege, who Yost notes graduated from boarding school, Yale, and Columbia. In yesterday's hearing, Scooter's attorney Theodore Wells laid out defense plans to attack anyone who has hinted that Scooter was involved in a plot to smear Joseph Wilson; discredit anyone who says Scooter knew Valerie Plame's identity was sensitive; and to try to make Scooter's trial for charges of perjury and obstruction of justice into a circus that showcases Wilson's trip to Niger and Bush's State of the Union address.
Judge Walton, however, is being firm but fair. He did rule that Mr. Fitzgerald has to turn over evidence regarding President Bush and VP Cheney declassifying a National Intelligence Estimate regarding possible WMD programs in Iraq. This may not help Scooter explain away the charges against him, but it will surely put the role of President Bush in sharper focus. That is important, because too often the media refers to Libby only as VP Cheney's chief of staff. He was, in fact, also Cheney's national security adviser, and assistant to President Bush. Those two roles will be as important in Mr. Fitzgerald's case as the VP's chief of staff.
Wells also noted that he is prepared to attack Wilson; he repeatedly called Wilson a "habitual liar" and said he had 5 witnesses who would testify the former ambassador had told them about his wife's CIA employment. Walton told him, "I don't know how it has any bearing on whether your client allegedly testified falsely."
Wilson later told CNN that Fitzgerald's investigation "make it very clear that the government believes several administration officials were engaged in a campaign to smear and discredit me, and it wold seem from the sounds of this that that campaign is continuing."
Wells also told Judge Walton that he planned to focus on Wilson's trip to Niger. "You want to try the legitimacy of our government going to war in Iraq," Walton replied. "I just don't intend to have this case become a forum for debating whether Wilson is right or the administration is right.... I'm just not going to let this case turn into a judicial resolution of the legitimacy of the war or the accuracy of the president's State of the Union address. .... You want to try the legitimacy of the war, and I don't see how this helps us determine whether Libby lied when he talked to the FBI and went before the grand jury."
Scooter Libby is, in my opinion, as much of a thug as the gang member who stabbed the kid in the back 9 times with an ice pick in Donora, PA, more than 30 years ago. Libby is attempting to continue his gang attack on Joseph Wilson today.
Reggie Walton has to recognize the tactics of a coward who refuses to take responsibility for his criminal behaviors. He just might be the perfect judge for this case.

Ode to Mrs. Fannie Lou Hamer

In the past week, I have had e-mails, phone calls, and even a visitor at my home, asking me to join in an important project. These friends are all opposed to a plan for a huge power line to be run from Canada to New York City. The plan is being pushed by a group called New York Regional Interconnect.
From the information I have read thus far, it is clear that this is part of the Cheneyification of America. It is a project geared to enrich those associated with large energy corporations, at the expense of average citizens. The plan is being pushed through in an under-handed manner that is hardly surprising, considering the cast of characters involved. Two that stand out are Walter Rich, a railroad tycoon, and his chum Sherwood Boehlert, the soon-to-retire congressman from central New York.
Mr. Rich's lack of ethics are documented in "Railroaded in Cooperstown," a book by David Butler, Sr., the former Chief of Police for Rich's New York, Susquehanna and Western Railway. (Boehlert's true nature comes through in the book, too.) Mr. Rich brought Karl Rove to Cooperstown a while back. It's not so much that I am concerned about what type of riff-raff they accumulate on their own property; it's the impact they have on the local communities.
The proposed project, which has not been shown to benefit anyone other than those who are invested in the energy corporations, has been shown to pose a substantial threat to those in it's path. It threatens the health of those closest to it, and the quality of life of those living nearby. Thus, a growing number of citizens are banding together to oppose the project.
The opposition includes local republicans, democrats, greens, and independents. Some of the best information on the opposition comes from the Upper Delaware Preservation Coalition's web site. See: http://www.udpc.net/
I live just north of Delaware County, and am joining with people in the Broome and Chenango Counties. It's not the first time that we've joined together with such groups. For over 20 years, I was involved with the effort to get the Richardson Hill/Sidney Center Landfill Superfund Sites taken care of. The 120-acres of toxic waste dumps there were located on a mountain top that had streams heading to two large rivers, the Susquehanna and the Delaware. The dumps impacted the quality of life not just on the mountaintop, but along both rivers as well.
More recently, I've mingled with many of these same friends and associates at the trial of the St. Patrick's Four, in Binghamton, N.Y. The group gathered at the federal courthouse included people ranging from local anti-war activists who were old enough to remember the Berrigan Brothers taking part in similar protests as the brave Catholic Workers on trial, to college students, and even Ray McGovern, who recently asked Donald Rumsfeld to tell the truth for a change.
There were also pro-war demonstrators there. In the first couple days, the Binghamton police kept the two groups apart, because of the tensions. By the third day, everyone realized that we had more in common than not, and both sides, and the police, were all on good terms.
One of my friends, who spent far more time at the trial than I did, is a former co-worker. She is a child psychiatrist, and one of the most sincere and dedicated human beings I've had the pleasure to know. In 1992, in 1996, and again in 2000, we would organize our co-workers, and do voter registration drives in the poor neighborhoods in rural Chenango County. We supported Bill Clinton, and we supported Hillary Clinton.
My friend told me that she had called Senator Clinton's office regarding the NYRI plan, and got a typical bureaucratic non-answer. We discussed our disappointment in Senator Clinton's move to the right on the Iraqi war. We are both democrats, but we are frustrated when any elected democrats become non-responsive to our needs, and are not open to hearing our concerns.
To use Hillary as an example, I note that I have met her twice. The first time was at the State University in Oneonta, on the day she announced she was running for Daniel Patrick Moynihan's seat in the Senate. I had waited there with the crowd of supporters, while she met with Moynihan at his Pinder's Corners farm. The next time I met her was in Sidney, NY. I waited with a group of local citizens, mainly democrats, while she met behind closed doors with local republican leaders. We never found out was she was discussing with them.
Now, I'm an old-fashioned democrat. A grass-roots activist democrat. A Fannie Lou Hammer, Mississippi Freedom Democratic Party type. So if a democratic senator's office is going to be non-responsive to the community concerns being expressed by those who have invested time and money supporting their campaigns here in our neighborhoods in central New York, I am not going to sit like a bump on a log.
I looked around on the internet, and I found a web site for a candidate who is challenging Senator Clinton in the primary. His name is Jonathan Tasini, and his web site is:
www.tasinifornewyork.org
I called his office on the teephone, and spoke to two people from his campaign. These are people who I've never met, and who I've never spoken to before, yet I felt like I was talking to old friends. Though they are from the New York City area, they are familiar with this region, interested in our concerns, and very well informed on the issues I called to discuss.
In the recent past, when I get the requests for contributions from the offices of Senator Clinton (and I've gotten as many as three in one day), I've done no more than enclose a note saying I can not in good conscience support a candidate who supports the Iraqi war. I refuse to invest a penny or a minute to aid a politician who weighs the potential political advantage of sending American kids to their death in Iraq. That is the Cheneyification of the Middle East.
Now I have found a democratic candidate for senate who is strongly against the Cheneyification of Iraq and of central New York.

Slam Dunk Scooter

In my May 2 essay, I noted that Team Libby had filed two documents with the court on May 1. The first was a Response to Patrick Fitzgerald's Motion to have Judge Reggie Walton reconsider his April 5 Opinion concerning Ex Parte submissions under CIPA. I used the term "histrionics' to describe the defense attorneys' choice of words ("meaningless dictum," "equally bizarre," etc). I stated that I suspect that some of the efforts being made by Team Libby are in anticipation of grounds for appeals after he is convicted.
Yesterday, Judge Reggie Walton issued a Memorandum Opinion that favored Mr. Fitzgerald, and may have closed the door on some of the issues that Team Libby was hoping for. Christy Hardin Smith wrote a wonderful, concise description of the ruling on Firedoglake that I strongly recommend to people interested in the case. I have a few thoughts might also be some value in understanding the significance of Judge Walton's ruling.
There has been a strong disagreement between the prosecutor and the defense on the need to keep classified information secret. That is perhaps an understatement, considering that Mr. Libby's legal troubles are rooted in his spreading classified information, including a National Intelligence Estimate and the identity of a CI analyst with NOC status. More, Mr. Libby's attorneys have admitted, in response to Judge Walton's April 13 Order, to having potentially violated the court order to not attempt to try the case in the media. In their April 21 Response, they admitted to having discussed the case with a reporter, and to releasing a document that was not yet filed on the public docket.
Mr. Fitzgerald prefers to have the court decide if some of the debate on the issues of what documents should remain secret should be done "Ex Parte." That is when a proceeding comes from one side; in this case, it means that only Mr. Fitzgerald presents his side to Judge Walton.
Team Libby prefers to have each hearing on these issues to be "adversarial," meaning that it is more fully litigated with both the prosecutor and defense attorneys making their arguments to the judge.
In his April 5 ruling, Judge Walton had indicated that the future issues on classified information would be determined by adversarial hearings. Mr. Fitzgerald then made a motion that by its nature had to show: {1} a change in law; {2} new evidence; or {3} a need to correct a clear error that could produce an injustice. He also included a motion for clarification. Judge Walton, upon further examination of the CIPA law, found that Mr. Fitzgerald was correct in suggesting there was an error that could have been significant.
The CIPA law is the Classified Information Procedures Act. Section 4 allows the court to authorize Mr. Fitzgerald to "delete specified items of specified information from documents to be made available to the defendant through discovery ..." Mr. Fitzgerald can, in those instances, either "substitute a summary of the information," or "substitute a statement admitting relevant facts that the classified information would tend to prove."
The defense attorneys prefer the adversarial hearings in part because they allow for more information to be entered into the court proceedings that may be grounds for a future appeal. Keep in mind that one of the four top guns in Scooter's "dream team" is focused primarily on appellate issues. In general, the basis of an appeal has to be found in errors in the formal court proceedings. These are found in two areas: {1} the wrongful admission of evidence; or {2} the improper refusal to allow evidence to be admitted.
Judge Walton noted, "The defendants will no doubt continue to object to this procedure. The Court notes, however, that this process actually places the defendant in a stronger position then he otherwise would be. If this Court did not amend its April 5, 2006 Opinion, the government, not the Court, would be tasked with independently determining the materiality of certain classified information. Here, the Court, as it must under CIPA, will be the final arbiter of such determinations."
I think that this ruling should further help ease the concerns of liberals and progressives that Judge Walton would be prone to helping Scooter Libby by interpreting the law in a way that handcuffed Mr. Fitzgerald. Instead, we see that the noose is tightening on the Team Libby defense strategy. Mr. Fitzgerald's case is beginning to look like, if you will excuse the expression, a "slam dunk."
Many liberals and progressives continue to have serious questions about Judge Walton's actions in the Sibel Edmonds' case. As a card-carrying member of the ACLU, I am also concerned about the amount of government secrecy. However, I recognize that there are times when the federal courts will make rulings that are not in favor of progressive movements in America.
I strongly recommend that people interested in previous cases that show the legal and political realities of the American constitutional system in cases where some similar issues are involved, read two books by Alan Westin of Columbia College. The first is "The Anatomy of a Constitutional Law Case," (Macmillan, 1958), which examines the fascinating "Steel Seizure" case of 1952. The second, which I think is more interesting, is "The Trial of Martin Luther King," by Westin and Barry Mahoney (Thomas Crowell Co., 1974). It is a study of the landmark Birmingham case, in which the US Supreme Court ruled against King. It is, in my opinion, worth reading in consideration of the Sibel Edmonds case.
The Libby case, and the upcoming Rove case, will perhaps serve for future books as important in understanding how the federal courts provide a setting for the struggles for progressive social change.

Team Libby Filings (5-1)

Attorneys for I. Lewis "Scooter" Libby filed two documents on May 1, 2006 in efforts to prepare to his defense. The first is his "Response of I. Lewis Libby to Government's Motion for Reconsideration of the Opinion of April 5, 2006 Concerning Ex Parte Submissions Under CIPA Section 4." ( Case 1:05 - cr - 00394 Document 100)
This 9-page document concerns the on-going disagreement between Patrick Fitzgerald and Team Libby over how the prosecution attempts to have the court determine certain sensitive intelligence documents are non-material. Team Libby wants these issues "litigated in a separate adversarial hearing." Fitzgerald, of course, wants to present his side Ex Parte.
Part of the reason Fitzgerald wants the non-adversarial hearings is because of the classified nature of the material in question. After the filings on April 21, regarding the leaks of a court document, and regarding one defense attorney talking to a reporter on a sensitive issue, it seems reasonable for Mr. Fitzgerald to have concerns about protecting secret, classified information. More, Mr. Libby's legal problems are an outgrowth of his activities that included sharing a classified NIE with journalists, and exposing a CIA NOC agent's identity.
Perhaps because they are on the hot seat, Team Libby's document has a splattering of histrionics. There are phrases like, "It would be astonishing, and inconsistent with the Order's 'detailed analysis' ...(and) would render the Court's discussion of CIPA 4 meaningless dictim. ... It would be equally bizarre ...." It seems clear that to most people, including Judge Reggie Walton, Mr. Fitzgerald's case does not seem astonishing in its inconsistency, nor is it bizarre.
In the past, I have commented that some of the less significant Team Libby documents seem to have been authored by an angrier person than the others. This is one of the those examples. I will speculate that these are filed largely as an insurance policy of sorts, so that if Scooter doesn't make a deal before he goes to trial, that after he is convicted there are procedural issues for appeal. The Court's 4-5-06 opinion on the Ex Parte issue was clearly fair to Libby's defense team.
The second document is "I. Lewis Libby's Consolidated Response to Motions to Quash by NBC News, Judith Miller, Andrea Mitchell, Matthew Cooper, Time,Inc, and The New York Times, and Memorandum of Law in Support," (Case 1:06-mc-00169-RBW, Document 5). I found this document to be far more interesting. Most of the issues discussed are not new, though one thing did stick out.
In recent weeks, on a number of forums, people have questioned the integrity and the accuracy of Jason Leopold of Truthout.com. Mr. Leopold has had numerous hard-hitting reports on the Plame scandal, including information on Karl Rove, that indicates that Mr. Leopold has one or more "inside sources." Some people have questioned this. It appears that Libby's attorneys are not among those who question if Mr. Leopold has inside information: on page 20, we find, "See Jason Leopold, Libby Filing, Truthout.com, April 14 (Exh L.)"
Will Pitt of Truthout has vouched for Mr. Leopold on the Plame reports, and that is all the "proof" I needed to hear. Mr. Pitt, who is one of the resources that Ambassador Joseph Wilson cites in his book, has a passion for journalism. The Team Libby Document, in my opinion, indicates that a large part of Scooter's defense strategy is to put the media on trial. Unlike the AIPAC espionage trial, in which is being called an attack on the media, but is not, this part of the case involves serious constitutional issues of the integrity of the free press.
Team Libby shows an inclination to ignore the truth while attempting to blame the media for Scooter's legal problems. On page 11, they state, "The government will rely on these conversations to contend that Mr. Libby must have been lying when he testified that he was surprised to learn from Mr. Russert (on July 10 or 11) that Ms. Wilson worked for the CIA ..." Then, on page 20, we read, "Again, the government will presumably rely on this alleged communication to contend that Mr. Libby could not have been surprised when Mr. Russert told him the same thing a month earlier."
Mr. Fitzgerald is not contending that Scooter already knew about Plame before Russert told him she was CIA and sent Wilson to Niger. Rather, he contends that Libby knew who Plame was because VP Cheney told him, and he had several conversations with other administration officials about her, and that Libby lied about the conversation with Russert.
Team Libby's odd sense of who is on trial is also found in a footnote: "Mr. Libby chose not to require the Washington Post to produce documents it has previously furnished to the government, but which the Court has ruled do not have to be disclosed to the defense." The documents they do seek, they believe, "likely contain evidence that the employment status of (Ms. Plame) ... was so peripheral in Mr. Libby's mind that he could have easily forgotten or misremembered any conversation in which she was allegedly discussed." They go on to say that "...there was no such campaign (to smear Wilson and expose Plame) -- or that if there was, Mr. Libby had nothing to do with it."
Right. If not Scooter, who? Ari Fleischer, Marc Grossman, Cathi Martin, and Bill Harlow are among those that this documents points to as being the source of the problems that poor little Scooter is shouldering today. But more, they point at Judith Miller.
Regarding Scooter's three conversations with Judith about the Wilsons, Niger, and the NIE, they state, "Yet, Ms. Miller's own public account casts serious doubt on the reliability of her recollection." They point out that in her notebook, she wrote, "Valerie Flame, Valery Plame, Valerie p, V.F., Victoria Wilson..." This, they claim, "will allow Mr. Libby to contend that, contrary to the allegations in the indictment, it was Mrs. Miller who raised the topic in her discussions with Mr. Libby -- if the topic was raised at all."
All of this, Team Libby explains, "makes it more likely that Mr. Libby saw Ms. Wilson's CIA affiliation " as a non-issue. Regarding the issues involving the protection of a free press, they write, "Even if there were a reporter's privilege it would be qualified and easily overcome by the circumstances of this case." It seems clear that things like a CIA NOC's identity and a free press are of little consequence to our man Scooter.