Some Dare Call It Treason...

A correspondent reminds me that it is time once again to surf over to Donald Luskin's website and to once again lay down a marker that you check everything he says before you trust it. But I don't have the heart to do it. It's just too depressing.

So let me grab one thing from my archives: Donald Luskin's declaration that the doings of the Bushies in the Valerie Plame Wilson case are "tantamount to... treason":

Donald Luskin on Paul Krugman and Valerie Plame on NRO Financial: Paul Krugman, America's most dangerous liberal pundit, has made a statement in his Times column today which... [is] an extraordinarily serious allegation, tantamount to accusing Bush administration officials of treason: "...Bush administration officials have exposed the identity of a covert operative."

Hold on to that thought in light of Patrick Fitzgerald's statement that Bush administration officials have exposed the identity of a covert operative:

Fitzgerald News Conference - New York Times: October 28, 2005 TranscriptValerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community. Valerie Wilson's friends, neighbors, college classmates had no idea she had another life. The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security.

Valerie Wilson's cover was blown in July 2003. The first sign of that cover being blown was when Mr. Novak published a column on July 14th, 2003. But Mr. Novak was not the first reporter to be told that Wilson's wife, Valerie Wilson, Ambassador Wilson's wife Valerie, worked at the CIA. Several other reporters were told. In fact, Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson....

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 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.... It was known that a CIA officer's identity was blown, it was known that there was a leak. We needed to figure out how that happened, who did it, why, whether a crime was committed, whether we could prove it, whether we should prove it. And given that national security was at stake, it was especially important that we find out accurate facts.

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.... [I]f information is gathered about people and they're not charged with a crime, we don't hold up that information for the public to look at.... But as important as it is for the grand jury to follow the rules and follow the safeguards to make sure information doesn't get out, it's equally important that the witnesses who come before a grand jury, especially the witnesses who come before a grand jury who may be under investigation, tell the complete truth. It's especially important in the national security area....

That brings us to the fall of 2003....And to be frank, Mr. Libby gave the FBI a compelling story.... [I]f only it were true. It is not true.... The indictment alleges that Mr. Libby learned the information about Valerie Wilson at least three times in June of 2003 from government officials.... [A]t least four people within the government told Mr. Libby about Valerie Wilson.... Mr. Libby, the indictment alleges, was telling Mr. Fleischer something on Monday that he claims to have learned on Thursday.... Mr. Libby testified that he told the reporters he did not even know if Mr. Wilson had a wife....

[But] Mr. Libby discussed this information about Valerie Wilson at least four times prior to July 14th, 2003: on three occasions with Judith Miller of the New York Times and on one occasion with Matthew Cooper of Time magazine... June 23rd of 2003... July 8th.... At the end of the day what appears is that Mr. Libby's story that he was at the tail end of a chain of phone calls, passing on from one reporter what he heard from another, was not true. It was false. He was at the beginning of the chain of phone calls, the first official to disclose this information outside the government to a reporter. And then he lied about it afterwards, under oath and repeatedly....

[W]hy is this a leak investigation that doesn't result in a charge?... If you saw a baseball game and you saw a pitcher wind up and throw a fastball and hit a batter right smack in the head, and it really, really hurt them, you'd want to know why the pitcher did that. And you'd wonder whether or not the person just reared back and decided, I've got bad blood with this batter. He hit two home runs off me. I'm just going to hit him in the head as hard as I can.... And what you'd want to do is have as much information as you could. You'd want to know: What happened in the dugout? Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you'd want to know. And then you'd make a decision as to whether this person should be banned....

In this case, it's a lot more serious than baseball. And the damage wasn't to one person. It wasn't just Valerie Wilson. It was done to all of us. And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. Cooper? And was this something where he intended to cause whatever damage was caused?... [W]hat we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.... [T]he harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.

I also want to take away from the notion that somehow we should take an obstruction charge less seriously than a leak charge. This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.... [I]f what we allege in the indictment is true, then what is charged is a very, very serious crime... [given] the public interest in finding out what happened here...

Comments

[hack]

Is Donald Luskin stupider than Douglas Feith? This is a debate for the ages.

[PaulC]

Two questions come to mind as I reveal my limited attention span and get sidetracked a quarter of the way down.

By calling Krugman the most dangerous *liberal* pundit, is Luskin conceding that it's comparatively easy to find wingnuts on the right who endanger the republic on a routine basis?

Is there a photo anywhere of America's Most Dangerous Liberal Pundit shaking hands with America's Silliest Dog?

Oh, a third question. What is it with Luskins? Besides Donald, there's Rove's attorney Robert Luskin, and some clown named Casey Luskin who argues in favor of intelligent design. I don't think it's a hugely common name, but so far I am unaware of a single Luskin I agree with.

[alan]

I'm afraid when reviewing Luskin's articles you neglected the overriding disclainer that covers all right-wing commentary: IOKIYAR.

This amazing principle means that it is Treason or a High Crime to be accused of perjury if you are a Democrat, but no big deal if you are a Republican. They are, after all, "Gods Own Party" and God can do whatever He wants.

Too bad for them that this issue isn't going to be decided on Fox News.

P.S. Don't try to get cute with a Federal prosecuter as experienced as Fitzgerald. Do something safe instead like wrestle polar bears or high doses of crack cocaine or something.

[tom f]

At my gym, FoxNews happened to be on and all I could make out on the closed caption was "criminalizing politics as usual" and "Congress investigated Wilson and found out that his charges were false"...

[Movie Guy]

Brad DeLong -- "Hold on to that thought in light of Patrick Fitzgerald's statement that Bush administration officials have exposed the identity of a covert operative:"

Fitzgerald never made that statement.

I watched the entire press conference. Your statement is incorrect.

Further, the transcript record reads:

FITZGERALD: "Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward."

"I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent."

FITZGERALD: "We have not charged that. And so I'm not making that assertion."

[masaccio]

Fitzgerald writes beautifully. No one could read this, or hear it for that matter, and not understand the serious nature of Libby's crime, and the reasons to prosecute it. It could have been posted at Firedoglake in one of their little steps for little feet descriptions of the criminal justice system.

[lfs]

Nobody could be "f....g" dumber than Feith.

[dd]

I am disquieted by the continuing overreach of federal prosecutors. We give them power to investigate facts and discern crimes. What happens when there is no crime (or as Mr. Fitzgerald maintains no ability to discern a crime because the participants have chosen to lie about events that may or may not be criminal) and the very obfuscation is defined as a crime (regardless of actual underlying criminality). Republicans are big on these distinctions and so have expanded criminal law to charge as criminal actions once removed from the original acts that may or may not have been crimes. Bill Clinton's sex, Arthur Andersen's document destruction, Martha Stewart's broker discussions and now Libby Scooter's actions form a lexicon of criminality in which there is no alleged underlying crimal act; but an obfuscation in the aftermath of embarrassing (but not necessarily criminal) actions. I don't know the answer and Fitzgerald's explanation sounded reasonable; but still it gave me pause about what it means to be innocent until proven guilty.

[ogmb]

You're too late, Brad. The Medium Lobster already wrote about Donald Luskin. OK, technically speaking he didn't write about Donald Luskin but about Michael Kinsley, but we can file that under Donald Luskin-related program activities.

http://fafblog.blogspot.com/2005/10/if-only-corruption-came-with-cliff.html

[BroD]

I recognize the "Some Dare..." title, by the way. As I recall from my college days in small town Indiana back in the early 60's, it was a right wing tract about how leftists had sold out America.

[Matt]

No one seems to have the information. If Libby isn't indicted for revealing Plame's Non Official Cover then isn't the first mention of her covert cover by David Corn? Will we see Corn talking to the grand jury? Someone gave the media the fact that she was a NOC. If it wasn't Libby then who was it?

[Tom Marney]

Paul C wrote, "By calling Krugman the most dangerous *liberal* pundit, is Luskin conceding that it's comparatively easy to find wingnuts on the right who endanger the republic on a routine basis?"

Good point. Similarly (with apologies if someone has made this observation before), when you (Brad) refer to Donald Luskin as the stupidest man alive, aren't you implying that if there's a stupider person alive, it'd have to be a woman?

[save_the_rustbelt]

I may be overly technical, but if no one is indicted for the crime of leaking the name, how can one be indicted for obstruction of justice? Can one obstruct justice if the initial investigation does not result in an indictment?

I think being on the defense team could be quite interesting here, but that may be a premature judgement.

Libby should ask for a trial in southern California (but then Libby is not a football player, actor and he has probably never slept with little boys). Maybe not.

[Walt]

BroD, it's a reference to an old poem (as is the book title you're thinking of),

Treason doth never prosper; what's the reason?
For if it prosper, none dare call it treason.

[Rich Gibson]

dd writes "...in which there is no alleged underlying crimal act; but an obfuscation in the aftermath of embarrassing (but not necessarily criminal) actions."

And others are attempting to make the same point in this and other threads. I am deeply troubled and confused by the logic of this thread.

These individuals swore oaths along the lines of swearing to 'tell the truth, the whole truth, and nothing but the truth so help me god.'

(I have no idea what the exact oath is now-don't bust my balls if my wording is slightly off).

If I swear an oath and testify in front of a grand jury and I lie then that is a crime-purjury.

Lying to those who society has charged with investigating potential crimes is a crime.

Destroying evidence so that crimes can not be investigated is a crime.

Arthur Anderson and Martha Stewart and Libby commited these crimes in order to thwart justice. It doesn't actually matter if they were hiding a crime or just bad judgement.

Libby and Stewart and Clinton all had the perfectly legal option of telling the investigators to go fuck themselves...that wonderful 5th amendment and all. But you can't lie to the grand jury.

[Lee A. Arnold]

Page 11 of the indictment gives the obstruction charge:

"In or about March 2004, in the District of Columbia, I. LEWIS LIBBY, also known as "SCOOTER LIBBY," defendant herein, did knowingly and corruptly endeavor to influence, obstruct and impede the due administration of justice, namely proceedings before Grand Jury 03-3, by misleading and deceiving the grand jury as to when, and the manner and means by which, LIBBY acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA."

The details follow and it couldn't be clearer.

[Bruce Moomaw]

Yep. We still don't know just WHAT Libby was trying to conceal with his perjury, but he was clearly trying to conceal something important. (Lest we forget, Clinton's concealment of his voluntary affair with Monica had absolutely nothing to do with the main charge of whether he had exposed himself to Paula Jones against her wish, but that didn't stop the Right at the time from raising hell about the fact that he had concealed it.)

Andrew Sullivan, by the way, thinks that Fitzgerald has the goods on Libby for the actual main charge, but is holding off charging him for the moment to see if he can be turned to expose higher-ups: http://www.andrewsullivan.com/index.php?dish_inc=archives/2005_10_23_dish_archive.html#113054808801359975

[Kirk Spencer]

dd, rustbelt, let me see if I can explain.

Let us say I commit a murder. I destroy most of the evidence. What I do not destroy, I contaminate so that it cannot be used to definitively prove either a murder was committed or that I was the one who committed the murder.

The investigation of the murder commences, and the fact that I was the one who contaminated the evidence is discovered and provable. But because of the job I did, murder is impossible to prove.

Should the prosecutor decline to pursue me on charges of obstructing justice merely because he cannot prove I (or maybe my wife, or maybe my best friend) committed the murder? Your arguments appear to be, "no, Kirk should get away with it all." Yet I don't think that's what you really believe.

We know that a CIA agent's relationship with the CIA was classified information, and that relationship wrongfully exposed by giving it to members of the press. That is a wrong. Legally (technically) we do not know if this met the definitions to make it violation of the IIPA, or if it was violation of the Espionage act, or if it was mishandling of classified information. The investigation attempting to determine which it was and subsequently who (if anyone) actually committed that wrong were obstructed by the willful action of at least I. Lewis Libby.

Or so claims the indictment. If it is so proven in court, then he will be as guilty as the murderer who successfully hides his major crime but gets caught in the hiding - certainly an easier price to pay, but still not exempt from all justice.

[dogfacegeorge]

I'm curious about Movie Guy's point. Fitzgerald says that Plame's cover was "classified," but he won't say, one way or the other, whether it was "covert."

Can anyone explain the difference to me?

[Movie Guy]

dogfacegeorge,

Glad you raised the question. During his press conference, Fitzgerald made specific statements with regard to dates concerning Valerie Plame Wilson's status and many may have overlooked what he said or implied.

Valerie Plame Wilson could have been protected under U.S. statute and CIA policy for a number of reasons. (A) Plame was supposedly a NOC (non-official cover) agent. (B) Plame was supposedly working under the cover of another agency. (C) Plame had supposedly served previously as a covert agent (covert NOC agent, supposedly) performing assigned duties in foreign lands (overseas). (D) Whatever else...

Now, come a few questions. (1) Was Plame a covert agent as of July 14, 2003, according to the U.S. code definition for 'covert agent'(provided below)? (2) Was Plame still a NOC agent as of July 14, 2003? (3) Was Plame's personal identity fully projected by the CIA as of July 14, 2003? (4) Was Plame's work classified as of July 14, 2003? (5) Had Valerie Plame or her husband revealed her NOC CIA agent identity prior to June 2003? (6) Was Valerie Plame's classified status being converted to official status (diplomatic passport) in July 2003 or did the matter of CIA career redesignation only occur recently?

My opinions regarding the questions: (1) No. (2) Yes. (3) No. (4) Yes. (5) Possibly, Yes. (6) To be determined.

Issues of significance: The CIA spokesman who represented the agency in the July 2003 discussions with Novak did not offer the level of protections that one would expect for securing the secret (as opposed to mere classified) identity of a CIA NOC agent or a covert agent. In other words, by statute and policy, the CIA should have denied that Plame was an agent or employee of the CIA if she was, in fact, still a NOC agent or a covert agent. That did not happen. This implies that she was only given the level of identity protection afforded official agents of the CIA (those issued diplomatic passports). Moreover, if she was physically working at Langley as Novak claims, this lowers the likelihood that Plame was still (1) a NOC, or (2) covert agent of the CIA. Her presence at Langley and travels to/from Langley would have provided too much physical visibility for future successful performance as a supposed NOC or covert agent. In other words, her physical employment at Langley should have eliminated any likelihood of future designation as a NOC or covert agent. Unless the CIA doesn't think that anyone is smart enough to track those who flow in and out of the gates of Langley.

At a minimum, Plame's identity as an official agent of the CIA served as a classified information violation. Not all classified information violations are crimes for which grand jury actions can be taken. Some lawful violations fall below the level of criminal convinction consideration.

And this is an important consideration. Fitzgerald could pursue any of the violations that exist with disclosure of classified information, including Wilson's oral report to the CIA which was still classified as July 14, 2003. As such, any number of security clearances could have been pulled for discussing the briefing that Wilson provided to the CIA. Wilson, of course, would be included under such lawful consideration as would various White House staffers and perhaps the Vice President. This is the issue that has fallen off of the radar. How many security clearances in the White House have been pulled as a result of any of the leaks? Libby's is the only clearance that I am aware of which no remains in force.

Background:

Robert Novak, July 14, 2003 - "The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him."

Robert Novak, July 14, 2003 - "Wilson made an oral report in Langley that an Iraqi uranium purchase was "highly unlikely," though he also mentioned in passing that a 1988 Iraqi delegation tried to establish commercial contacts."

Robert Novak - July 14, 2003 - "The CIA report of Wilson's briefing remains classified." (key point - as of July 14, 2003)

Robert Novak, October 1, 2003 - "First, I did not receive a planned leak. Second, the CIA never warned me that the disclosure of Wilson's wife working at the agency would endanger her or anybody else. Third, it was not much of a secret."

Robert Novak, October 1, 2003 - "This story began July 6 when Wilson went public and identified himself as the retired diplomat who had reported negatively to the CIA in 2002 on alleged Iraq efforts to buy uranium yellowcake from Niger."

Robert Novak, October 1, 2003 - "At the CIA, the official designated to talk to me denied that Wilson's wife had inspired his selection but said she was delegated to request his help. He asked me not to use her name, saying she probably never again will be given a foreign assignment but that exposure of her name might cause "difficulties" if she travels abroad. He never suggested to me that Wilson's wife or anybody else would be endangered. If he had, I would not have used her name."

Robert Novak, October 1, 2003 - "It was well known around Washington that Wilson's wife worked for the CIA."

Robert Novak, October 1, 2003 - "While the CIA refuses to publicly define her status, the official contact says she is "covered" -- working under the guise of another agency. However, an unofficial source at the Agency says she has been an analyst, not in covert operations."

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What I Didn't Find in Africa
By JOSEPH C. WILSON
Published: July 6, 2003

http://www.nytimes.com/2003/07/06/opinion/06WILS.html?ex=1372824000&en=6c6aeb1ce960dec0&ei=5007&partner=USERLAND

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Mission to Niger
by Robert Novak
July 14, 2003

http://www.townhall.com/opinion/columns/robertnovak/2003/07/14/160881.html

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The CIA leak
by Robert Novak
October 1, 2003

http://www.townhall.com/opinion/columns/robertnovak/2003/10/01/168398.html

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"In fact, I saw her (former?) supervisor being interviewed on television recently, and he said they had been in the process of changing her over to official cover, which would have allowed her to travel under a diplomatic passport on her own."

http://www.tpmcafe.com/comments/2005/10/27/19935/041/50#50

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DOJ Letter of Instruction to Fitzgerald

http://www.usdoj.gov/usao/iln/osc/documents/ag_letter_feburary_06_2004.pdf

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DOJ Delegation of Authority to David Margolis

http://www.usdoj.gov/usao/iln/osc/documents/ag_memo_august_12_2005.pdf

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TITLE 50 > CHAPTER 15 > SUBCHAPTER IV > § 426. Definitions [Covert Agent]

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00000426----000-.html

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TITLE 50 > CHAPTER 15 > SUBCHAPTER IV > § 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00000421----000-.html

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Section 371. Conspiracy to commit offense or to defraud United States

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=371

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Executive Order 12958-Classified National Security Information, as Amended
(note sec. 4.1(a) among others)

http://www.archives.gov/isoo/policy-documents/eo-12958-amendment.html

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Information for Security Mangers related to Executive Order 12958-Classified National Security Information, as Amended

http://www.archives.gov/isoo/government/info-for-security-managers.html

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Classified Information Nondisclosure Agreement, Standard Form 312 (Prescribed by NARA/ISOO) (32 C.F.R. 2003, E.O. 12958)

http://contacts.gsa.gov/webforms.nsf/ 0/03A78F16A522716785256A69004E23F6/$file/SF312.pdf).

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Information Security Oversight Office, National Archives and Records Administration, Briefing Booklet: Classified Information Nondisclosure Agreement (Standard Form 312), at 73 (emphasis added)

http://www.archives.gov/isoo/training/standard_form_312.pdf)

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[dogfacegeorge]

I think Movie Guy raises another interesting question that I'd like to see Scott McClellan answer:

Has anybody (besides Scooter) lost a security clearance because of the Valerie Wilson outing?