Judith Miller & the "many dark actors"

{1} "Two days after the hearing, he responded to a New York Times reporter who had e-mailed him offering encouragement. The reporter was Judith Miller. Kelly had been a source for her on WMD issues, and at 11:18 a.m. that Thursday, he sent her an e-mail that cryptically noted that there were ‘many dark actors playing games.’ He then thanked Miller for her support and friendship.

"It was the last e-mail Kelly ever sent." – Hubris; Isikoff & Corn; page 294

{2} "The newspaper that would be most affected by postinvasion reconsiderations was the New York Times, which for a year had resisted looking under the rock of Judith Miller’s coverage. …On the heels of her reckless prewar coverage of Iraqi WMD, Miller had traveled to Iraq and cut a wide swath. Embedding with an Army unit searching for weapons of mass destruction, she filed a series of articles in the spring of 2003 that suggested that large amounts of stockpiles were about to be uncovered. …. More than a half-dozen military officers said that Miller had played an extremely unusual role as an embedded reporter, effectively operating as a middleman between Chalabi’s organization and the Army unit, MET Alpha." – Fiasco; Thomas Ricks; pages 382-383

The Plame scandal is significant not only because of the crimes of the Bush-Cheney administration, but also because it involves the betrayal of the public’s trust by several members of the corporate media. No journalist comes off looking worse than Judith Miller.

There have been numerous discussions of her role in the Plame scandal, and – by no coincidence – other closely related scandals. And her involvement in the grand jury investigation ended up being appealed all the way to the US Supreme Court. Some people attempted to make her seem a noble protector of the 1st amendment; her friend Marie Brenner’s article in Vanity Fair (Lies and Consequences: Sixteen Words That Changed the World) grants poor Judith the status of martyr.

"I am not above the law, and do not view myself as above the law. I am here today because I believe in the rule of law," Judith told the judge who incarcerated her for breaking the law. After several months, St. Judith would write "My Four Hours Testifying in the Federal Grand Jury Room" (10-16-05) for the New York Times. The same day, her co-workers exposed her as a journalist who did not accept supervision from an editor, which raised questions about exactly who Judith really worked for.

Those questions will not be answered when she testifies in the Scooter Libby trial. Rather, Patrick Fitzgerald is focused upon a series of three interactions Judith had with Libby in the summer of 2003, in which Joseph Wilson, Valerie Plame, and parts of a classified, then declassified, NIE were discussed.

Mr. Fitzgerald’s position on Judith’s role is best defined by Exhibit B from the 10-30-06 Document 166, Libby’s "Motion In Limine to Exclude Evidence and Argument Concerning Valerie Wilson’s Employment Status and Actual or Potential Damage Caused by Disclosure of That Status." Exhibit B was the 8-27-04 affidavit of Mr. Fitzgerald, that detailed how Miller’s testimony was needed to prove that Libby was purposefully lying to the FBI investigators and grand jury about the timing of his learning of Plame’s identity, and his discussions with journalists – including Miller.

I expect Judith to come across as "wishy-washy" on the witness stand. I do not believe that she wants to help the prosecutor. But I think that she still is angry that Libby allowed her to sit behind bars for an extended period.

There is a footnote on page 28 of Mr. Fitzgerald’s 37-page affidavit that is interesting: "15. If Libby knowingly disclosed information about Plame’s status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered ‘information respecting national defense’." It will be interesting to see if Mr. Fitzgerald or Team Libby have any surprises for Judith.

Lamb Chop vs Pork Chop

"The rumors swirling around Rove, Libby, and Abrams were so pervasive in Washington that the White House press secretary, Scott McClellan, was obliged to address them in an October 2003 briefing, saying of Rove: ‘The president knows he wasn’t involved … It’s simply not true.’ McClellan refused to be drawn into a similar direct denial of Libby’s or Abram’s possible involvement, however. Later interpretations of the line being taken by the White House spokesman, according to members of the press who have spoken with me, indicate that the administration’s defense is extremely narrow: the leakers and pushers of the story did not know the undercover status of Valerie Plame, and therefore, though they may have disclosed her name, they did not commit a crime." – The Politics of Truth; Joseph Wilson; pages 444-445.

In last week’s opening statement, defense attorney Teddy Well claimed that I. Liar Libby was being made into a "sacrificial lamb" by a White House intent upon protecting Karl Rove. Those following the case debated if this was merely the tactics of defense attorneys seeking to shift blame from their guilty-as-hell client,; if the administration was attempting to manipulate public perception; or if there was indeed a struggle between the Office of the President and the Office of the Vice President.

I believe that there was a serious conflict involving people within Bush’s and Cheney’s offices. It is important to recognize that this does not mean that there was tension between Bush and Cheney. Rather, it suggests that there was hostility between those working inside the two offices. If there was a split between the two offices, then it is likely that it has been exploited by Patrick Fitzgerald. And, if that is true, then it is possible that by looking closer at the tensions between Bush and Cheney’s offices, we might be able to identify one area where VP Cheney will be at risk, should he actually testify.

One of the best sources of information on the Plame scandal is, of course, Joseph Wilson’s book. He notes how the OVP had initiated a "work up" on him, in order to be prepared to undercut any effort he made to expose the lies about the Niger yellow cake. He writes, "between March 2003 and the appearance of my article in July, the workup on me that turned up the information on Valerie was shared with Karl Rove, who then circulated it in administration and neoconservative circles." (page 443)

We know from the Libby indictment that Rove told Libby that he had spoken with Bob Novak, and that Novak was writing an article that would expose Valerie Plame. And after Novak’s article was published, Rove was among the White House officials attempting to promote the new spin: "Rove’s strategy appears to have been simple – change the subject and focus attention on Valerie and me instead of the White House – but it proved to be seriously flawed," Wilson writes. The "serious flaw" was that exposing Plame’s identity was a crime. And, "according to two journalist sources of mine, when Rove learned that he might have violated the law, he turned on Cheney and Libby and made it clear that he held them responsible for the problem they had created for the administration. The protracted silence on this topic from the White House masks considerable tension between the Office of the President and the Office of the Vice President." (page 444)

If Wilson is correct, then we should be able to find evidence of those "tensions" by looking just beneath the surface. In their book "Hubris," authors Michael Isikoff and David Corn note that in late Spetember, 2003, there was considerable tension as the media reported the Plame leak was under investigation. Press reports indicated that Novak was but one of many journalists called by at least two administration officials looking to expose Valerie Plame as a CIA employee. Rumors in Washington hinted that Karl Rove was involved. Isikoff & Corn note that "the questions started coming about Rove. Was he involved in the leak to Novak?

" ‘I’ve made it very clear, from the beginning, that it is totally ridiculous,’ McClellan said. ‘I’ve known Karl for a long time, and I didn’t even need to go ask Karl, because I know what kind of person that he is, and that he is someone committed to the highest standards of conduct.’ But McClellan added, ‘I have spoken with Karl about this matter … I’ve made it very clear that he was not involved, that there’s no truth to the suggestion that he was.’

"What about the vice president? Could McClellan say categorically that Cheney wasn’t involved?

" ‘I’ve made it clear that there’s been nothing, absolutely nothing brought to our attention to suggest any White House involvement, and that includes the vice president’s office,’ he remarked." (pages 322-323)

Isikoff & Corn go on to describe McClellan taking "another pounding" at the next press briefing, and how mid-level White House officials were convinced that Rove and Libby had not been involved in the scandal. This is because there were attempts to cover-up the involvement of the members of the president’s and vice president’s offices. The truth was being kept from co-workers. And efforts were being made to shift suspicion away from the most powerful members of the White House. Let’s look at part of Scooter’s effort.

One of the most important pre-trial documents in the case is the Government’s Response to Defendant’s Third Motion to Compel Discovery, filed on April 5, 2006. On pages 27-28, we find the following:

"During this time, while the President was unaware of the role that the Vice President’s Chief of Staff and National Security Adviser had in fact played in disclosing Ms. Plame’s CIA employment, defendant implored White House officials to have a public statement issued exonerating him. When his initial efforts met with no success, defendant sought the assistance of the Vice President in having his name cleared. Though the defendant knew that another White House official had spoken with Novak in advance of Novak’s column and that official had learned in advance that Novak would be publishing information about Wilson’s wife, defendant did not disclose that fact to other White House officials (including the Vice President) but instead prepared a handwritten statement of what he wished White House Press Secretary McClellan would say to exonerate him:

"People have made too much of the difference in
How I described Karl and Libby
I’ve talked to Libby.
I said it was ridiculous about Karl
And it is ridiculous about Libby.
Libby was not the source of the Novak story.
And he did not leak classified information."

Scooter continued to feel that the White House was protecting Rove at his expense when McClellan refused to go out on a limb for him. In "The trial of Dick Cheney" (1-24-07) Justin Raimondo quotes from Teddy Wells’ opening statements, as reported on FireDogLake by "emptywheel":

"Mr. Libby was not concerned about losing his job. He was concerned about being the scapegoat.

"Mr. Libby said to the VP, ‘I think the White House people are trying to set me up, people want me to be the scapegoat. People in the White House want me to protect Karl Rove ….’

"Cheney made notes of what Libby said. Notes show Libby telling the Vice President that he was not involved in leak…."

As a result of Libby’s concerns, David Corn writes in his blog (1-24-07), "Cheney pressured the White House press office to make a statement clearing Libby of any wrongdoing. …. Responding to Libby’s gripe, Cheney wrote a note that said, ‘Not going to protect one staff (and) sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others’."

All of this took place on late September and early October of 2003. At the time, Attorney General John Ashcroft was monitoring the Department of Justice’s investigation. Though some democrats in Congress were requesting a special prosecutor to investigate the scandal, Ashcroft was not willing to recuse himself. It would not be until December that he finally did step aside, and allow James Comey to appoint Patrick Fitzgerald to the case. And it would not be until October of 2005 that Libby was indicted.

The focus on Rove continued: in an April 12, 2006 document, Team Libby noted that "Mr. Rove remains a subject of a continuing grand jury investigation." In this context, it seems unlikely that the tensions over McClellan’s comments were all part of a White House charade to provide potential cover for Scooter in case he went on trial in 2007. Rather, this evidence supports what Joseph Wilson described as "considerable tensions between the Office of the President and the Office of the Vice President."

And this will be an interesting area for both the defense and prosecution to question VP Cheney about, should he actually testify. Will Dick cling to the lie that he had no idea that Scooter was involved in the leaking of Valerie Plame’s identity to journalists? And what exactly was he speaking of when he mentioned "the incompetence of others"?

The Relative Deprivation of Dick Cheney

"Patiently endured so long as it seemed beyond redress, a grievance come to appear intolerable once the possibility of removing it crosses men’s minds. For the mere fact that certain abuses have been remedied draws attention to others and they now appear more galling; people may suffer less, but their sensibility is exacerbated.’ -- Tocqueville

Political scientists and sociologists have often studied the observations of the historian and foreign minister Alexis de Tocqueville, who described the events that led to the French Revolution. The events he spoke of have been associated with a concept known as "relative deprivation." There are a number of good definitions of "relative deprivation"; however, for the sake of this discussion, we will go with Diana Kendall’s description of it being the group phenomena that occurs as a result of "unfulfilled rising expectations." (Sociology in Our Times; Thomson Wadsworth; 2005; page 530)

In general terms, this means that social change is most likely to take place not when people are oppressed beyond a breaking point, despite the fact that this is what seems to make sense to the average person. Rather, social changes are most likely to take place when things are beginning to look like they might get better for a group of people, and then the progress comes to a halt.
In many cases, it has to do with the people within the group comparing their status with that of others. Hence, the issues that spark the change are not "past events," so much as they are the reality of the moment, and the potential for the future.

Now, what does that have to do with the Scooter Libby trial ?

Good question. The Libby trial has to do, of course, with the purposeful lying that led this country to war in Iraq. In the past, the administration that lied the nation into war seemed extremely powerful. No one in Congress seemed capable of doing battle with the beast. The judicial branch betrayed the Constitution by putting this group in power to begin with. The corporate media had donned cheer leading uniforms. Rational thought was widely dismissed by the Fox News clones. Progressive democrats were considered conspiracy theorists. And when an individual like Joseph Wilson stepped up to call the administration on its lies, they harnessed the power of the executive branch in an effort to crush him completely.

Dick Cheney and Donald Rumsfeld instituted a "shadow government," which showed their willingness -- No! eagerness! -- to trample the democratic form of government that really is the best potential of the United States. And, at that time, the vast majority of the American population was so numbed out as a result of the social novocain injected into their daily lives that they sat back, passively, and assumed the role of spectators.

Yet there were some people who recognized the dangerous drift of the Bush-Cheney administration, and who bravely challenged them. Some were people like Joseph Wilson; others were Representatives like Conyers and Waxman; but the vast majority were those people found at the grass roots level. And, of course, there were people like Mr. Eckenrode and Mr. Fitzgerald, who investigated the Plame scandal.

In the two years since George Bush was "re-elected," the war in Iraq has become recognized as the greatest failure in American foreign policy. Bush and Cheney have been largely discredited. Even most republicans recognize they are failures. Still, Americans hear President Bush speak of increasing the troops in Iraq, and they know it is because he is more willing to send soldiers to their death, than to admit that he not only was wrong to invade Iraq, but that he doesn’t have a clue how to resolve the problems he continues to cause. And Americans hear an angry, hostile, insane Dick Cheney snarl that the war is going well, and that anyone who questions him is – like Joe Wilson – an enemy of the state.

I used "google" today, to check how many newspapers across the country have articles covering yesterday’s testimony in the Libby case. There are more than a thousand. More than a thousand newspapers with articles that detail how a member of Dick Cheney’s inner circle revealed in court what a lying snake he is.

The headline in the Baltimore Sun reads: "Aide testifies Cheney joined effort to discredit war critic: She says vice president, Libby actively sought to spin news coverage." A story from KansasCity.com notes, "Martin’s unflappable testimony was a blow to Libby’s defense …. (and) also undercut Libby’s claim he was too busy with terrorism threats" to be concerned with Wilson. The article refers to Cheney as being "obsessed" and ordering his "closest aides to keep aggressive tabs" on Wilson.

The LA Times’ headline reads, "Cheney’s key role in leak case detailed." The first sentence of the article states, "In the first such account from Vice President Dick Cheney’s inner circle, a former aide testified Thursday that Cheney personally directed the effort to discredit an administration critic by having calls made to reporters in 2003."

The list goes on and on.

In November, 2006, I wrote that the time had come for the grass roots to demand that Congress begin to take action to impeach VP Dick Cheney. Many people agreed. Others expressed a belief that such action on our part would be reckless. I respectfully ask those who sincerely questioned the call to impeach Cheney to reconsider. I believe that such a step is needed to bring the madness of the Bush-Cheney Iraq policy to an end.

Thank you for your consideration.

The Cheney Gospels

"There had been a number of anonymous leaks to reporters from the intelligence community during the late spring and early summer of 2003, claiming that Vice President Cheney, his chief of staff, Lewis ‘Scooter’ Libby, and even former Speaker of the House of Representatives Newt Gingrich had pressured analysts to skew intelligence analysts to back up the administration’s preconceived political intentions." – The Politics of Truth; Joseph Wilson; page 6.

Yesterday’s testimony in the Libby trial featured Robert Grenier, a former top CIA official involved in overseeing the Agencies’ Iraqi operations, and Craig Schmall, the CIA briefer who worked with both Libby and Cheney. The testimony from both men, as well as the harsh questioning from Team Libby, served as a reminder of the tensions between the Office of the Vice President and the CIA.

In chapter 13 of "A Pretext for War," James Bamford told about the intense pressure the Bush administration was putting on the Agency to find "evidence" that supported the administration’s position that Iraq had an extensive WMD program, and an operational relationship with al-Qaeda. "And the pressure was not just subtle, it was blatant. At one point, (a) boss called a meeting and gave them their marching orders. ‘And he said, "You know what – if Bush wants to go to war, it’s your job to give him a reason to do so",’ according to the official. It was the first time the official had ever heard anyone order employees to slant their analysis for political purposes." (pages 333-334)

Bamford was told that Cheney "had also made very unusual visits to the agency to pressure analysts to come up with something to justify the war. " The CIA analysts told of being pressured "to find something nuclear" in November -December, 2002. They were also told to find "proof" that Saddam was supporting al-Qaeda.

In a 6-12-03 article in the Washington Post, Walter Pincus quoted a senior CIA official as saying, "Information not consistent with the administration agenda was discarded." Pincus noted, " intelligence officials have accused senior administration policymakers of pressuring the CIA or exaggerating intelligence information to make the case for war."

Bamford also quotes Larry Johnson, the former CIA official who later served as deputy director of the State Department’s Office of Counter Terrorism: "In an e-mail exchange with a friend, I raised the possibility that ‘the Bush administration had bought into a lie.’ My friend, who works within the intelligence community, challenged me on the use of the word, ‘bought,’ and suggested instead that the Bush administration had created the lie…" (page 335)

It would require a book-length article to detail the extent of the lies coming from the Bush administration. Several books do just that, including Woodward’s "State of Denial" and Isikoff & Corn’s "Hubris." As I have noted in previous essays, the Office of the Vice President had a large degree of control over the White House Iraq Group (WHIG) and the Office of Special Plans (OSP). The WHIG did "perception management" operations, while the OSP, headed by Douglas Feith, did intelligence. On page 335 of "Hubris," the authors note "the CIA sent Feith a list of corrections that needed to be made to his memo – and disputed the reliability of several of the alarming reports he had cited."

The CIA analysts were aware that the OVP/WHIG/OSP were lying. There is no polite way to say that. Nor is there a need to be polite. Dick Cheney & Co, were purposely lying to the country to justify an attack on Iraq. And the OVP was furious when people at the CIA didn’t agree with them. In written testimony to congress, former CIA Counterterrorism chief Vince Cannistraro stated that Cheney and Libby made visits to the Agency to pressure analysts. Cheney "insisted that desk analysts were not looking hard enough for the evidence," according to Cannistraro. (Bamford; page 336)

" ‘I know the analyst who was subjected to withering questioning on the Iraq – al-Qaeda links by Libby with the Vice President sitting there,’ says a CIA analyst. ‘So I think there was an anger at the CIA for not getting it and being on board. The political side of the Administration was pissed at the CIA. So I can see how they responded to that…." (Time; 7-25-05; page 29)

As the OVP/WHIG/OSP became increasingly angry with the CIA, Dick Cheney became more involved in a high-profile attempt to sell the war. Bamford, as well as Corn & Isikoff, write about the number of times Cheney appeared on news programs to say that there was no doubt about Iraq’s WMD programs. More, Corn and Isikoff note that, "Just as he had done with the New York Times’ story on the aluminum tubes more than a year earlier, Cheney (who usually deplored leaks) was touting a leak of classified information to buttress the administration’s case for war – a leak that yet again rested on dubious intelligence.

"Cheney would go even further than the Feith memo. In an interview with NPR, he would claim that ‘there’s overwhelming evidence’ of an Iraq – al-Qaeda connection …He would also say the trailers found in Iraq were definitely mobile bioweapons labs." (page 336)

When Joseph Wilson challenged the Bush administration on VP Cheney’s outright lies, Cheney and Scooter freaked. Their lack of boundries was revealed in Grenier’s testimony yesterday, when he told of Libby ordering him out of a meeting with CIA director George Tenet. The contempt that Cheney and Libby felt for the Agency was expressed by the Team Libby attorney in the cross-examination.

Today, Cathy Martin is going to be on the witness stand. She will be important, because she will detail the conversations with Cheney and Libby on AF2, when Cheney directed Libby on how to deal with journalists on the Plame problem.

The Crisis of Confidence

"He gave me a little lecture about breaking a conspiracy like Watergate. ‘You build convincingly from the outer edges in, you get ten times the evidence you need against the Hunts and Liddys. They feel hopelessly finished – they may not talk right away, but the grip is on them. Then you move up and do the same thing at the next level. If you shoot too high and miss, then everybody feels more secure. Lawyers work this way. I’m sure smart reporters must too.’ I remember he gave me a look as if to say I did not belong in that category of smart reporters. " -- The Secret Man; Bob Woodward; 2005; page 91.

When the FBI investigators and Mr. Fitzgerald were attempting to uncover the truth about what the OVP/WHIG operation to damage Joseph and Valerie Wilson, the tactic that Mark Felt had described to Bob Woodward certainly applied. Yesterday, we looked at one of the players from the outer edge, Ari Fleischer, and by the mid-afternoon, Teddy Wells had made clear in open court that Fleischer had indeed felt the "grip" of the investigation. He looked out for #1.
The investigators and prosecutor try to use the "grip" to cause a degree of tension that fractures the suspects’ cover stories. Again, with Fleischer, we find that he immediately took the 5th, and requested immunity before he would testify. Mr. Eckenrode and Mr. Fitzgerald had looked at the WHIG/OVP, and had focused on events surrounding the African trip. Fleischer was something of an "outsider" within the primary suspects. Immunity was granted.

As the trial unfolds, we will see some of the other fractures. For example, today Marc Grossman will be back on the witness stand. We know he is friends with both Wilson and Armitage. But there are also tensions between Grossman and some of the others involved in the case. In their book "Hubris," Michael Isikoff and David Corn noted, "At times, tensions between Feith and Undersecretary of State Marc Grossman – over matters relating to Ahmad Chalabi’s INC – grew heated, so much so that Deputy National Security Adviser Stephen Hadley at one session had to order the room, the official said." (page 109)

Perhaps the most interesting fracture that became more evident yesterday was that between Scooter Libby and Karl Rove. Teddy Wells made it clear that VP Cheney was firmly in Libby’s corner on this one. This came as no surprise to anyone who has read Joseph Wilson’s book: "According to my sources, between March 2003 and the appearance of my article in July, the workup on me that turned up the information on Valerie was shared with Karl Rove, who then circulated it in administration and neoconservative circles. ….Apparently, according to two journalist sources of mine, when Rove learned that he might have violated the law, he turned on Cheney and Libby and made it clear that he held them responsible for the problem they had created for the administration." (pages 443-444)

The number of times that Rove testified before the grand jury, the role played by Viveca Novak, and the private meetings at Robert Luskin’s office with Mr. Eckenrode and Mr. Fitzgerald, are all clear indicators that pressure was being applied to Karl.

A Washington Post article on 10-20-05 noted, "White House adviser Karl Rove told a grand jury in the CIA leak case that I. Lewis ‘Scooter’ Libby, Vice President Cheney’s chief of staff, may have told him that CIA operative Valerie Plame worked for the intelligence agency before her identity was revealed, a source familiar with Rove’s account said yesterday. In a talk that took place in the days before Plame’s CIA employment was revealed in 2003, Rove and Libby discussed conversations they had had with reporters in which Plame and her marriage to Iraq war critic Joseph C. Wilson VI were raised …"

The prosecution is also aware of where the stronger links are. The obvious example is the relationship between Libby and Cheney. In "Hubris," the authors write, "But his ironic detachment vanished when it came to ‘the boss,’ as he called the vice president. ‘He was enamored ofCheney, he was almost an acolyte,’ said one friend. Libby’s life revolved around Cheney, He took his vacations in Wyoming so he could be near the vice president. He even took up hunting. After September 11, he came to view Cheney as a historical figure who saw the dangers facing his country with greater clarity than anyone. In December 2001, during an interview with journalist James Mann, Libby read aloud a passage from Winston Churchill’s memoir of the years leading up to World Wart II: ‘I felt as if I were walking with destiny, and that all my past life had been but a preparation for this hour and this trial.’ Libby told Mann these words could be applied to Cheney in the post-9/11 period." (page 238)

What is fascinating is that now, in the context of this trial, Team Libby must also attempt to exploit the fractures within the Bush administration. And that will include pointing out to the jury that Libby exercises a sense of loyalty to Cheney that is greater than that which Cheney shows for Libby.

The Dilemma of Ari's Alienation

{1} "According to Josh Marshall, a key sentence was cut out of the Gellman WaPo piece last night, but is still available on Nexis: ‘On July 12, the day Cheney and Libby flew together from Norfolk, the vice president instructed his aide to alert reporters of an attack launched that morning on Wilson’s credibility by Fleischer, according to a well-placed source’." – Ari Fleischer is the Third Man?; Jane Hamsher; FireDogLake; 10-30-05.

While we wait for reports on the opening statements in the Scooter Libby trial, I thought it would be fun to take a look back at the role that Ari Fleischer played in the Plame scandal. There seems to be a possibility that he will play a significant role in the trial, and it is fair to say that there has been some controversy over what Fleischer told investigators.

For example, a 7-18-05 Bloomberg report stated, "On the flight to Africa, Fleischer was seen perusing the State Department memo on Wilson and his wife, according to a former administration official who was also on the trip." However, on 7-23-05, the New York Times reported, "Mr. Fleischer told the grand jury that he never saw the document, a person familiar with the testimony said …."

Who to believe? Obviously, we cannot trust the White House. If we could, we wouldn’t be having this trial. It is clear that Mr. Fitzgerald is going to be presenting information to the jury – and hence, to the American people – that tells the story of the Office of the Vice President’s operation against Joseph Wilson and Valerie Plame to an extent that it has not previously been told to the public.

{2} "The tensions between the White House and the CIA had been rising steadily in the months before the Iraq invasion, as CIA analysts complained about evidence being distorted or ignored and the White House pushed back with complaints about the quality of the intel they were getting. ‘I know the analyst who was subjected to withering questioning on the Iraq - al-Qaeda links by Libby with the Vice President sitting there,’ says a CIA analyst. ‘So I think there was an anger at the CIA for not getting it and being on board. The political side of the administration was pissed at the CIA’." – TIME; 7-25-05; page 29.

Let’s briefly review the set-up within the White House, as it pushed for an invasion of Iraq. For our discussion, we’ll start by noting there are two main offices: that of the president, and that of the vice president. The president gets "intelligence" from a wide range of sources, including the CIA. In this administration, the vice president has relied upon what Joseph Wilson described as "a government cult with cells in most of the national security system. Among those cells are the secretive Office of Special Plans in the Department of Defense (reportedly now disbanded) and a similar operation in the State Department that is managed in the office of Under Secretary for Disarmament John Bolton." (The Politics of Truth; Joseph Wilson; page 432)

The White House Iraq Group (WHIG) promoted the administration’s positions in the media. It coordinated efforts between the OVP, the OSP, and the Office of the President. It used methods that are known as "perception management" in order to "sell" the war. One example stands out: on Sunday, September 8, 2002, the New York Times had a front-page story about Iraq’s WMD programs. It involved aluminum tubes the administration claimed were part of a sinister WMD delivery system. The story, co-authored by Judith Miller, had been planted by none other than Scooter Libby.

The WHIG played this on the Sunday morning talk shows. VP Cheney was on Meet the Press, asking, "Did you see the story in the New York Times?" Colin Powell did much the same on Fox News Sunday; Richard Meyers did his thing on "This Week…"; and Condi Rice played the lie with CNN’s Wolf Blitzer.

In a wonderful essay titled, "Chris Matthews and the Power of Repetition," Ariana Huffington wrote about how Matthews exposed the WHIG tactic by repeatedly reporting on the method they used: plant the story, then have White House officials say, "Did you see this?" On a 10-19-05 program, Matthews told Frank Rich that it was a classic "alley-oop" play.

Now let’s apply that alley-oop strategy to the Plame scandal.

{3} "The next day, Libby told then White House press secretary Ari Fleischer that Wilson’s wife worked at the CIA and added that this was a fact not widely known – dropping, perhaps, an invitation to Fleischer to leak it to a friendly reporter." – TIME; 11-7-05; page 37.

On page 336 of his book, Joseph Wilson focuses on the role that Ari Fleischer played in the White House’s response to his New York Times op-ed. Fleischer was among the officials who was going on a trip to Africa with President Bush. Wilson notes, "Ari Fleischer, the president’s press secretary, was planning to leave the White House after the current trip in order to set up his own communications shop …. I am not sure his performance during his last week with the White House would have inspired anybody to hire him."

In an article on the "23 Administration Officials Involved in Plame Scandal" on Think Progress, it is noted that Fleischer was "among (the) first government officials to criticize Wilson. " His attempts to "spin" the Wilson story began during a July 12, 2003 press conference held at The National Hospital in Abuja, Nigeria. He refers to Wilson as a "lower-level official," and said Wilson made "flawed and incomplete statements." (Newsday; 3-6-04) He also hinted that Wilson’s op-ed had obscured the truth:

Fleisher: The President’s larger message has not been obscured …

Q: You just said it was being obscured. You said there’s a larger truth here that’s being missed.

Fleischer: Yes, but the larger truth – the larger truth being missed this week …. I can say there is an important bigger picture here …. The discussion was, the CIA needs to explain what its role was in this….

The transcript of this press conference was subpoenaed by Mr. Fitzgerald. It is interesting to note that it was pulled from the White House’s web site at one point, but later replaced. (Newsday; 3-6-04) It can be found on their web site as "Press Gaggle with Ari Fleischer" for july 12, 2003

{4} "The White House lied. George W. Bush lied. Dick Cheney lied. Donald Rumsfeld lied. Ari Fleischer, perhaps predictably, lied. " – Bush’s Worst Enemy; William Rivers Pitt; TruthOut; 12-30-03

The June 10, 2003 State Department memo on the Wilson trip to Niger was faxed to Colin Powell. It would reportedly be passed around White House officials on Air Force One on bush’s trip to Africa. During his investigation, Mr. Fitzgerald was interested in who read the memo. And, interestingly, he was equally interested in which White House officials who were not along on the trip to Africa had access to the memo.

"According to sources close to the investigation, Fitzgerald seemed most interested in whether officials who stayed at the White House while the President was in Africa also had the memo that week, when the first known calls to reporters took place. Details of the memo, if not the memo itself, may have been shared with one or more White House officials well before Wilson’s article appeared. Rove and I. Lewis (Scooter) Libby, Vice President Dick Cheney’s chief of staff, have told prosecutors they had never seen the document, according to sources familiar with their statements." – TIME; 7-25-05; page 28.

Newsweek reported that Fleischer "was sent out to trash the Wilson op-ed. ‘Zero, nada, nothing new here,’ he said. Then, on a long trip to Africa, Fleischer and Bartlett prompted clusters of reporters to look into the bureaucratic origins of the Wilson trip. How did the spin doctors know to cast that lure?" (7-25-05; page 30)

That’s one of the "mysteries" the trial should answer. And it brings us back, full circle, to part of that sentence that Jane Hamsher recognized was one of the most important keys to the case: "the vice president instructed his aide to alert reporters of an attack launched that morning on Wilson’s credibility by Fleischer…"

An Imperfect Chronology

"For every thing there is a season, and a time for every matter under heaven: a time to be born, and a time to die; a time to plant, and a time to pluck up what has been planted; a time to kill, and a time to heal; a time to break down, and a time to build up; a time to weep, and a time to laugh; a time to mourn, and a time to dance; a time to cast away stones, and a time to gather stones together; a time to embrace, and a time to refrain from embracing; a time to seek, and a time to lose; a time to keep, and a time to cast away; a time to rend, and a time to sew; a time to keep silence, and a time to speak; a time to love, and a time to hate; a time for war, and a time for peace." – Ecclesiates 3:1-8

As we enter the week in which Patrick Fitzgerald’s opening statement will focus on truth, and in which President Bush’s state of the union address will justify his lies, it may be interesting to examine a partial history of the Plame scandal. What follows is not, of course, a complete history. Yet it may help us to see some of the patterns of I. Liar Libby’s behavior – those things he now says that he simply forgot.

1992: Scooter Libby and Paul Wolfowitz prepare a classified document for their boss, Dick Cheney, which is leaked to the press. It is a blueprint for empire, calling for a global US military presence to "establish and protect a new order," and to deter any "potential competitors from even aspiring to a larger regional or global role." (Where the Right Went Wrong; Patrick Buchanan; 2004; pages 42-43)

1992: Karl Rove is fired from President Bush1’s re-election campaign for leaking information to journalist Robert Novak. (Newsweek; 7-25-05; page 31)

January 26, 1998: The neoconservative Project for the New American Century (PNAC) sends a letter to President Bill Clinton, requesting that he invade Iraq. http://www.newamericancentury.org/iraqclintonletter.htm

1999: Ambassador Joseph Wilson goes on a trip to Niger to investigate rumors about possible sale of yellow cake uranium. The trip is reportedly made for the CIA. (State Department memo; Carl W. Ford, Jr; 6-10-03; page 4)

January, 2001: "In foreign policy, demonstrating a policy that would soon be called ‘preemption’ with the overthrow of Saddam – despite Bush’s campaign pronouncements that the United States would be ‘humble’ in its global posture and never engage in ‘nation-building’ – was already a central mission." (The Price of Loyaltty: George W. Bush, the White House, and the Education of Paul O’Neill; Ron Suskind; 2004; page 87)

September 15: "Wolfowitz seized the opportunity. Attacking Afghanistan would be uncertain. He worried about 100,000 American troops bogged down in mountain fighting in Afghanistan six months from then. In contrast, Iraq was a brittle, oppressive regime that might break easily. It was doable. He estimated that there was a 10 to 50 percent chance that Saddam was involved in the September 11 terrorist attacks. ….During a break, Bush joined a side discussion that included Cheney, Cheney’s chief of staff, I. Lewis ‘Scooter’ Libby, and Wolfowitz. … Wolfowitz expanded on his arguments about how a war against Iraq might be easier than against Afghanistan." (Bush At War; Bob Woodward; 2002; pages 83-84)

January, 2002: The first "reports" of a possible Niger-Iraq deal involving yellow cake uranium surface in the Bush administration. (The Politics of Truth; Joseph Wilson; 2004; page 452)

February 19, 2002: Joseph Wilson meets with people at the CIA, to discuss his taking a trip to Niger to investigate the Niger situation. (Wilson; page 452; // TIME; 7-25-05; page 26)

March, 2002: After he returns from Africa, Wilson briefs people at the CIA and State Department on his findings. (Wilson; page 452)

March 9, 2002: The CIA sends a memo to the White House, summarizing Wilson’s findings. (TIME; 7-25; page 26)

August, 2002: "Hadley and Libby were part of another secret office that had been set up within the White House. Known as the White House Iraq Group (WHIG), it was established in August 2002 by Chief of Staff Andrew H. Card, Jr., at the same time the OSP was established in Feith’s office. Made up of high-level administration officials, its job was to sell the war to the general public, largely through televised addresses and by selectively leaking the intelligence to the media." (A Pretext for War; James Bamford; 2004; page 318)

August, 2002: "The WHIG began priming its audience in August when Vice President Cheney, on three occasions, sounded a shrill alarm over Saddam Hussein’s nuclear threat." (Bamford; page 319)

September 14, 2002: "Saddam Hussein has the scientists and infrastructure for a nuclear-weapons program, and has illicitly sought to purchase the equipment needed to enrich uranium for a nuclear weapon." President Bush’s weekly radio address.

October, 2002: "The Iraqi regime is seeking nuclear weapons. Does it make any sense for the world to wait …. For the final proof, the smoking gun that could come in the form of a mushroom cloud?" President Bush, speech in Cincinnati.

October 10 & 11, 2002: Both the House and Senate pass resolutions that authorize the use of force against Iraq. (TIME; 7-25-05; page 26)

January 23, 2003: Condi Rice has an op-ed in the New York Times in which she discusses "Iraq’s efforts to get uranium from abroad."

January 28, 2003: "Then the president’s voice took on a different tone. He began to detail the horrible substances Saddam Hussein had not accounted for. To a hushed chamber, Bush recited the poisons …Then came the fateful and now famous sixteen words … All the while, Bush had spoken in a hushed voice, deliberately and dramatically emphasizing each frightening possibility, each deadly agent. It reminded me of my Boy Scout days, when theatrical scoutmasters would terrify youngsters with spooky tales around a campfire in the woods." (Losing America; Senator Robert Byrd; 2004; pages 181-182)

February 25, 2003: Secretary of State Colin Powell refuses to include the Niger yellow cake information in his presentation to the United Nations.

March, 2003: According to media analyst Andrew Tyndall, of the 414 stories on Iraq broadcast on the three major television networks – NBC, ABC, and CBS – all but 34 originated at the White House, the Pentagon, or the State Department. All but 34 of 414 stories on Iraq followed the Bush line. Mere coincidence? Not likely. Consultants told their media clients to play up the patriotism. One expert advised his broadcast clients in a ‘war manual’ to ‘get the following production pieces in the studio NOW … Patriotic music that makes you cry, salute, get cold chills! Go for the emotion {Washington Post, March 28, 2003}" (Byrd; page 142)

March 7, 2003: The International Atomic Energy Agency (IAEA) announces that the Niger documents submitted by the United States are crude forgeries. (Wilson; page 452)

March 8, 2003: A State Department spokesperson tells the media that "We fell for it" in regard to the forgeries. Joseph Wilson tells CNN that the US government has "more information on this matter." He later learns that "soon after" this led to a meeting in the Office of Vice President Cheney, apparentlt led by Scooter Libby and Newt Gingrich, in which the WHIG decided to do a "work-up" on Wilson. (Wilson; page 452)

May 6, 2003: Nicholas Kristof has an article in the New York Times that exposes the White House lies on the Niger yellow cake.

May 29, 2003: Scooter "Libby asked an Under Secretary … for information concerning the unnamed ambassador’s travel to Niger to investigate claims about Iraqi efforts to acquire uranium yellowcake. The Under Secretary thereafter directed the State Department’s Bureau of Intelligence and Research to prepare a report concerning the ambassador and his trip." (Libby Indictment; page 4)

June 8, 2003: On Meet the Press, Condi Rice denies knowledge of the Niger lies: "Maybe somebody down in the bowels of the Agency knew about this, but nobody in my circles."

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 …. 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. … LIBBY and one or more other persons in the Office of the Vice President handwrote the names ‘Wilson’ and ‘Joe Wilson’ on the documents." (Indictment; page 4)

June 10, 2003: Carl Ford, Jr. Sends his report on the Wilson trip to Under Secretary Grossman.

June 11, 2003: "If there were doubts about the underlying intelligence to that National Intelligence Estimate, those doubts were not communicated to the president, the vice president, or to me." Condi Rice at press briefing.

June 11, 2003: A Senior CIA official tells Libby about Valerie Plame. (TIME; 11-7-05; page 34)

June 11 or 12, 2003: Vice President Cheney tells Libby about Valerie Plame. (TIME; 11-7; page 34)

June 11 or 12, 2003: Grossman answers Libby’s questions about Wilson’s trip to Niger. (TIME; 11-7; page 34)

June 14, 2003: Libby’s CIA briefer tells him about Valerie Plame. (TIME; 11-7; page 34)

June 19, 2003: A story in The New Republic "The First Casualty: The Selling of the Iraq War" exposes OVP lies about Iraq. "Shortly after the publication …. Libby spoke by telephone with his then Principal Deputy and discussed the article. The official asked LIBBY whether information about Wilson’s trip could be shared with the press …. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line." (Indictment; page 6)

June/July, 2003: "In or about June or July 2003, and in no case later than on or about July 8, 2003, LIBBY was advised by the Assistant to the Vice President for Public Affairs that Wilson’s wife worked for the CIA." (Indictment; page 13)

July 6, 2003: Joseph Wilson’s op-ed was published in the New York Times; he also appeared on Meet the Press.

July 7, 2003: Libby has lunch with Ari Fleischer. Libby tells him that it is "not well known" that Plame works for the CIA and played a role in sending Wilson to Niger. TIME called this "an invitation to Fleischer to leak it to a friendly reporter." (TIME; 11-7-05; page 37)

July 7, 2003: The State document is sent to Colin Powell on AF1 on a trip to Africa. Other White House officials are seen reading it openly. (TIME; 7-25-05)

July 8, 2003: Libby asks the Counsel to the OVP about paperwork regarding if a CIA employee’s spouse went on a trip. (Indictment; page 13)

July 8, 2003: {1} Rove speaks to Robert Novak, who plans to write about Plame; {2} Robert Novak tells a complete stranger on a Washington DC street about Plame; {3} Libby tells Judith Miller about Valerie Plame. (TIME; 11-7; and Wilson; 2004)

July 10, 2003: Rove talks to Libby about Novak’s plan to write about Plame. (Indictment)

July 10, 2003: Libby calls Tim Russert to complain about MSNBC’s Chris Matthews’ reporting in the war. (Hubris; Isikoff & Corn; 2006; pages 265-267)

July 11, 2003: Rove talks to Matt Cooper about Plame. (TIME; 11-7-05)

July 12, 2003: On AF2, Libby speaks with VP Cheney and Cathy Martin about how to deal with the media regarding the Wilson issue. Later that day, Libby tells both Matt Cooper and Judith Miller about Plame. (TIME; 11-7-05; Indictment; and Hubris)

July 14, 2003: Robert Novak’s column exposes Valerie Plame.

July 16, 2003: David Corn writes that the exposing of Plame may be criminal. (A white House Smear; The Nation)

July 20, 2003: NBC’s Andrea Mitchell tells Wilson that the White House is coordinating a campaign to smear him and his wife. (Wilson; page 453)

July 21, 2003: Chris Matthews calls Wilson to tell him about a phone call from Karl Rove, in which rove said, "Wilson’s wife is fair game." (Wilson; page 453)

September 29, 2003: The Department of Justice begins investigating.

September 29, 2003: Mike Allen and Dana Priest report that the White House had called at least six top journalists with information on Plame. (Washington Post)

October 14, 2003: Libby is interviewed by the FBI.

November 26, 2003: Libby is again interviewed by the FBI.

December 5, 2003: A senior White House official says, "We have rolled the earthmovers in over this one" in regard to the cover-up in the Plame case. (Financial Times; James Harding)

December 30, 2003: John Ashcroft recuses himself from the Plame investigation. James Comey assigns Patrick Fitzgerald.

January 21, 2004: TIME reports that a federal grand jury has begun investigating the Plame scandal.

February 5, 2004: UPI’s Richard Sale reports that two people in the OVP are suspects in the case.

March 5, 2004: Tom Brune reports the grand jury has issued subpoenas for AF1 phone logs from July 7-12, and for all WHIG records from July 6-30.

March 5, 2004: Libby testifies in front of the grand jury.

March 24, 2004: Libby again testifies.

October 28, 2005: The grand jury indicts Libby.

This is not a complete record of the scandal. I encourage readers to fill in the blanks.

The Libby Conviction

"Now, something needs to be borne in mind about a criminal investigation. … Investigators do not set out to investigate the statute, they set out to gather 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 has committed the crime, whether you can prove the crime and whether the crime should be charged.

"Agent Eckenrode doesn’t send people out when $1 million is missing from a bank and tell them, ‘Just come back if you find wire fraud.’ If the agent finds embezzlement, they follow through on that. That’s the way this investigation was conducted."
--Patrick Fitzgerald; Libby Indictment Press Conference; 10-28-05

The indictment of Scooter Libby presented the Office of the Vice President with a number of serious problems. Before the indictments were even announced, people connected to the White House Iraq Group had announced plans for "attacking any criminal charges as a disagreement over legal technicalities or the product of an overzealous prosecutor." But then President Bush had told reporters that, "The special prosecutor is conducting a very serious investigation – he’s doing it in a very dignified way."

But it wasn’t just Patrick Ftzgerald who presented problems for the OVP. In many ways, he was the third in a series of individuals in the Plame scandal investigation who were proving difficult for the administration to deal with. And this was on top of the frustrations the OVP/WHIG had with what they believed to be a surprising reaction from progressive democrats, who had embraced Joseph Wilson and his wife, Valerie Plame.

Progressive democrats, along with the rest of the country, are finding the jury selection for the Libby trial fascinating. The court has recognized the significance of bloggers – and the fact that much of the most important reporting on this scandal has been found on the internet – and the result is that we are treated to the impressions of a much wider range of reporters. I thank Judge Walton for honoring Amendment 1 of the Bill of Rights.

As we prepare for the trial to swing into higher gear with the opening statements, I thought it might be interesting to look closer at one of the less "well known," but most important people involved in the trial. He is someone who the OVP/WHIG does not want you to learn about in the context of this trial. His name is Jack Eckenrode, and he was the FBI Investigator who is responsible for having the Department of Justice name a special counsel for the CIA leak case.

Last year, John Shiffman reported that , "Eckenrode, 53, grew up in the Lehigh Valley, attended Bethlehem Catholic High School, and graduated from St. Francis College in Loretto, Pa. According to an FBI biography, Eckenrode joined the bureau as a budget analyst in 1974 and became a special agent in 1983, specializing in white-collar and public corruption cases.

"In addition to the Plame case, Eckenrode has led several sensitive and high-profile cases: an FBI task force on campaign-finance infractions from the 1996 presidential election and the investigation into who leaked classified National Security Agency intercepts related to 9/11 but not translated until Sept.12. Also, he directed the FBI’s operations center in New York after the Sept. 11 attacks wiped out the bureau’s headquarters there." (Phila.’s FBI chief, part of CIA-leak case, leaving; The Philadelphia Inquirer)

Isikoff and Corn call Jack a "dogged investigator who reminded some of the Tommy Lee Jones character in The Fugitive. (Hubris; page 330) His intensity in attempting to solve crimes had unnerved a number of people: he believed that in cases involving national security, that it was sometimes necessary to force reporters to testify in front of federal grand juries, and he was also willing to target high-ranking politicians of both parties when he suspected them of wrong-doing.

In September of 2003, he was assigned to investigate the CIA’s concerns about potential illegal activities connected to the administration’s leaking Valerie Plame’s identity to several reporters, including Bob Novak. It was Brave Bob who went on Meet the Press on October 5, 2003 and snarled, "I will not give up the source. If I were to give up that name, I would leave journalism."

On October 7th, Eckenrode and two other investigators met a quivering Bob Novak at his attorney’s office. They did not need to press Novak to give up his sources: they already knew that they were Dick Armitage and Karl Rove.

On October 10th, the investigators Karl Rove. He admitted that he had told Bob Novak that he had heard that Plame worked at the CIA. As Murray Waas has reported, the FBI had evidence that showed phone conversations between Novak and Rove after the investigation was announced, and they suspected the two may have agreed to a "cover story." (See "Rove-Novak Call Was Concern to Leak Investigators"; 5-25-06, by Waas; also, Corn & Isikoff, page 333.)

On October 14th, Jack Eckenrode interviewed Scooter Libby. Corn & Isikoff write, "Unlike Rove, Libby didn’t say he couldn’t remember how he had first heard about Valerie Plame. He offered the FBI a specific recollection. … with this account, Libby was keeping Cheney out of the picture. In Libby’s telling, Cheney was not a party to any plot to assail a critic. But at this point Libby’s defense already had one big potential flaw. He had identified two specific reporters with whom he had spoken …."

Jack Eckenrode believed that both Rove and Libby were being dishonest. He pushed the issue. Attorney General John Ashcroft was forced to recuse himself after what John Dean called "months of dillydallying" (Worse Than Watergate; page 173) because of Eckenrode’s investigation. Ashcroft put his deputy James Comey in charge of the investigation, and Comey delegated his authority to his friend Patrick Fitzgerald. The OVP/WHIG would come to believe that Comey had betrayed them; Eckenrode, Comey, and Fitzgerald are the three people they are unable to smear.

Comey has called Fitzgerald "Eliot Ness with a Harvard law degree and a sense of humor." Eckenrode had never met Mr. Fitzgerald before. Isikoff & Corn note the two met at the Justice Department in late December 2003, and Jack gave him a briefing on the case. Jack gave Patrick a huge file on the case, and then drove him to the airport. The two discussed their plans for New Year’s Eve.

"Eckenrode would be spending it with his family. Fitzgerald, a longtime bachelor, mentioned he had a date with a woman he’d been seeing. On New Year’s Day, Fitzgerald called Eckenrode at home. He wanted to talk about those (files). Fitzgerald had read them all. Having mastered the most obscure details, he started questioning Eckenrode about the interviews. He tossed out ideas – brilliant ones, Eckenrode thought – for moving the case forward." (Hubris; pages 342-3)
The grand jury investigation started shortly thereafter. Though Patrick had broken his New Year’s Eve date, he was prepared for something very important to this country. His investigation continued to be coordinated with Jack Eckenrode. The two were reported to have met with Rove’s attorney two days before the October 2005 indictments were announced.

People interested in the case will recall the opening of Mr. Fitzgerald’s press conference: "Good afternoon. I’m Pat Fitzgerald. I’m the United States attorney in Chicago, but I’m appearing before you today as the Department of Justice special Counsel in the CIA leak investigation.
"Joining me, to my left, is Jack Eckenrode, the special agent in charge of the FBI office in Chicago, who has led the team of investigators and prosecutors from day one in this investigation."

Now, I can appreciate that progressive democrats are concerned about the potential make-up of the Libby jury. But, I would remind them, that even law-and-order folks are likely to be impressed with "Eliot Ness" and "Lt. Samuel Girard."

A FISA Case of Interest

"Mr. Bush and Vice President Dick Cheney then embarked on an expansion of presidential power chilling both in its sweep and in the damage it did to the constitutional system of checks and balances." – The Imperial Presidency 2.0; New York Times; January 7, 2007

In the past 72 hours, the news media has reported on a number of important issues, ranging from the President’s desire to read American citizen’s mail without a warrent, to the possibility of the increasing violence in Iraq, and of the possibility of a "low level" nuclear strike involving two countries in the Middle East. I was reminded of an August 14, 2006 Memorandum Opinion from the United States of America v. Steven J. Rosen and Keith Weissman. (Case 1:05-cr-00225-TSE Doc. 343-1)

A significant part of this document details FISA (the Foreign Intelligence Surveillance Act) and the role of the FISC (Foreign Intelligence Surveillance Court). The case involves the prosecution of three individuals who are accused of violations of the Espionage Act. One of the alleged co-conspirators, Lawrence Franklin, has already entered a guilty plea. He admitted to providing intelligence information relating to Iran to Rosen and Weissman, which he knew was being shared with other people not entitled to it, including foreign officials.

Part of the evidence against Rosen and Weissman was obtained by use of the FISA laws that President Bush has said are not adequate to protect the United States from foreign powers and/or agents of a foreign power that pose a threat to our national security. Let’s take a closer look at the 8-14 ruling by conservative U.S. District Judge T.S. Ellis, to see how well FISA actually works in real life situations.

FISA was enacted in 1978 by Congress, in order to help the Executive branch investigate foreign intelligence threats to the USA that tended to involve issues falling outside the general Amendment 4 protections provided to US citizens. It was an attempt to reduce the potential of Executive abuses of power, such as those being practiced daily by the Bush-Cheney administration. The FISA process also allows for those who face criminal prosecution in he US courts to contest any evidence gathered in related surveillances, as well. The process is not perfect, though it has the potential to work well. The Rosen & Weissman case is, in my opinion, a good example for our consideration.

In order to get authorization for electronic surveillance or physical searches of a foreign power or the agent of a foreign power, the government must file a sealed application with the FISC. This ex parte application includes case specific information that a FISC judge considers in determining if there is probable cause to believe that: {a} the target is a foreign power or agent for a foreign power; {b} that the facilities at which electronic surveillance is directed are being used by the foreign power or their agent; and {c} that for physical searches, the premises/property is owned or used by the foreign power or their agent.

In cases where the prosecution intends to use FISA evidence, they have to notify the "aggrieved person," who is either the target of the surveillance or someone whose communications or activities were subject to the surveillance, and the federal district court where the government plans to use the evidence. The aggrieved person can then try to have the evidence suppressed on either of two grounds: first, that the evidence was illegally obtained; or second, that it was obtained in a way that did not conform to the FISC Order.

It is important to keep in mind that any activity that is protected by the Bill of Rights, most specifically Amendment 1, cannot in and of itself be the target of an FISC order for surveillance. The defendants in this case have attempted to portray their activities as lobbyists, who simply interact with a variety of people, including US government officials, journalists, and foreign officials. In an earlier attempt to have the charges against them dismissed, they claimed that their being prosecuted posed a risk to a free press in the United States. A November 30 UPI article (High bar set in AIPAC case; Shaun Waterman) noted, " The Department of Justice routinely declines comment on ongoing cases, but prosecutors have said in court filings that they ‘recognize that a prosecution under the espionage laws of an actual member of the press… would raise legitimate and serious issues and would not be undertaken lightly. Indeed, the fact that there has never been such a prosecution speaks for itself’." The Memorandum Opinion denying the motion to dismiss was issued on 8-9-06.

In their motion to suppress the evidence gathered under the surveillance that resulted from the FISC Order, they "claim that the discovery obtained from the government contains a significant amount of non-foreign intelligence information." However, "Count One lists fifty-seven overt acts in furtherance of the conspiracy," and Judge Ellis notes the defendants rely "upon an inordinately narrow view of what constitutes foreign intelligence information."

Rosen and Weissman also argue that the FISC erred when "it found probable cause to believe that the targets are agents of a foreign power." Judge Ellis ruled that their argument is "without merit," and provides the pertinent parts of the statutes which defines "agents of a foreign power," and he provides context for phrases such as "clandestine intelligence gathering activities" and "collection or transmission of information or material that is not generally available to the public."

Judge Ellis ruled that there is "ample probable cause to believe" that Rosen and Weissman were indeed acting as agents for a foreign power. He has decided that the case will probably begin in the spring of this year. At this time, it is important to remember that the two former AIPAC officials have not been convicted of any crimes. However, Larry Franklin has admitted his guilt in an espionage case that involved providing military intelligence on Iran to an unidentified foreign power. It is a case that should be of great interest to all US citizens.