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Friday, February 18, 2005

Something NOT to criticize Miller/Cooper/Abrams about

I'm a fan of Rich Lowry's. I think he's a bright fellow and a good writer. But in a piece in today's National Review Online, he's simply way off the mark — not just wrong, but venturing into silly-world:

A much simpler, more obvious argument is available to the defense — that the Intelligence Identities Protection Act that was supposedly violated in this case wasn't. The act establishes an extremely high standard for a criminal violation — the agent in question has to be undercover (Plame wasn't), and the leaker has to know she was undercover and be intentionally trying to undermine U.S. intelligence (very, very unlikely).

But the Miller/Cooper defense hasn't made this argument, probably because it would be so embarrassing. You mean to say, after months of chest beating, the Bush administration's crime of the century wasn't even a crime? It was just a Washington flap played for all it was worth by the same news organizations now about to watch their employees go to prison over it? That's the truth that the media will go to any length to avoid. If Miller and Cooper go to jail — I hope they don't — they will have plenty of time to think about the hypocrisy and ridiculousness of their caterwauling colleagues.

I definitely don't believe that only lawyers or lawyer-pundits should be writing about these issues. But I expect a nonlawyer who weighs in to have at least a basic understanding of the respective roles of prosecutor, grand jury, witness, and judge and jury. I suspect that Mr. Lowry has that understanding, but temporarily mislaid it when writing this op-ed. Because he's arguing here that before an indictment has even been returned, before the prosecution has had a chance to decide whether to ask the grand jury for an indictment, before the prosecution or the grand jury have heard from key witnesses subpoenaed by the prosecution — essentially during the very first phases of the investigative processes, much less the trial or deliberative processes — the judge would and should direct an acquittal of the as-yet-unnamed potential defendant(s), simply to let the grand jury witnesses off the hook.

I've faulted Floyd Abrams for what I think were poor tactical choices by him (or perhaps his insistent clients) as to what to argue in the DC Circuit. And I also agree that whether a crime was indeed committed is still an open question, and that there will be substantial hurdles for the prosecution to overcome should it seek and obtain an indictment. Exactly how high those hurdles are will depend on lots of factors that we in the public and punditocracy certainly don't know yet. Indeed, the whole point of the contempt citations is that the prosecution and grand jury don't know yet either.

But even if the hypocrisy on the part of the journalists that Mr. Lowry suggests does in fact exist, that certainly wasn't what prevented Floyd Abrams from arguing to the district court, or to the DC Circuit, that "the Intelligence Identities Protection Act that was supposedly violated in this case wasn't." Mr. Abrams represents witnesses, not defendants, in a criminal case. His clients lack standing to try to get an indictment dismissed, and that subject is wildly premature ("unripe" in jurisprudential terminology) since no indictment has yet been returned by the grand jury.

Does Mr. Lowry really want a criminal justice system in which a grand jury witness can interrupt a criminal investigation — indeed, abort it altogether — based on the witness' own assessment of whether a crime has been committed? I think not. And I certainly don't. And that's certainly not the way our current system operates.

Posted by Beldar at 02:27 PM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Something NOT to criticize Miller/Cooper/Abrams about and sent a trackback ping are listed here:

» Oh My..... Is That the Sound of Hell Freezing Over? from WunderKraut.com

Tracked on Feb 21, 2005 7:06:30 AM

» Putting the cart out front, then euthanizing the horse from BeldarBlog

Tracked on Feb 26, 2005 3:03:50 PM


(1) Boger made the following comment | Feb 18, 2005 4:24:42 PM | Permalink


In reading your blog I hardly got past Lowry's assertion that V. Plame is not covered under the Intelligence Identities Protection Act. He only had two sentences in support of his position (one of which, "..intentionally trying..," was a complete waste of pixels). My rebuttal is: the CIA told AG Ashcroft she was; Ashcroft (a lawyer, I believe) spent months of resources investigating the merits and actors of the case; he referred it to a special prosecutor, one Fitzgerald (a lawyer too, I believe) who has been at it for over a year, seen fit to impanel a grand jury and go into two different courts; wherein one of those courts rendered the opinion that "Fitzgerald knows the identity of the person with whom Miller spoke and wants to question her about her contact with that "specified government official" on or about July 6, 2003." And now along comes Rich Lowry (a journalist undoubtedly because his LSATs didn't have the juice), and advises the world that there is a prima facie technicality rendering the entire proceedings null and void? The foregoing rant is not based on legal acumen (Rich's LSATs most certainly topped mine), but plain logic.

But maybe there is another possibility. Maybe the law that is being applied here is the "Unauthorized Release of Classified Information Act." In Novak's original WaPo article of July 14, 2003, (interesting to note that it ran 8 days AFTER Miller's purported contact with the "specified" administration official), Novak linked Plame, a CIA employee, with work on WMD. I would be very surprised if just this linkage (Plame involved in WMD) is not highly classified government information. So the Bush administration official who picked up this secret information from appropriately classified documents (or briefings) was criminally negligent (minimally) in disclosing said classified information?

I view my take here as the same as or closely related to yours. But maybe not?

(2) Beldar made the following comment | Feb 18, 2005 5:19:15 PM | Permalink

Boger, I think you and I are pretty much on the same page. Unless and until an indictment is returned, we won't know what specific statutes will be the basis for the charges. And as you correctly point out, more than one could arguably give rise to criminal responsibility. We can all speculate over just how "covert" Ms. Plame really was, but that's all we're doing — speculating without hard facts. I also agree that it's fair to presume — at least at this point — that the CIA has provided DoJ (and the Special Counsel) with sufficient information about Plame's position and its sensitivity to at least justify the Special Counsel in making further inquiries and putting the subject before the grand jury.

It's possible that after looking into it thoroughly, the Special Counsel won't even ask the grand jury for an indictment, or (less likely) that he'll ask for one but the grand jury will refuse. (I presume that the Special Counsel already has enough evidence to get an indictment against the proverbial ham sandwich if he so chooses.) And even if there is an indictment, the points that Mr. Lowry argues may eventually turn into fine, even winning, arguments with the judge and/or the jury.

But until I see an indictment, I certainly want to withhold judgment on how strong the criminal charges may be. Indeed, because of the national security issues involved, even then it may be hard for pundits to evaluate the strength of the prosecution's case, because not all of the supporting evidence will become public until trial, and some of it perhaps not even then.

I think Mr. Lowry's usually fairly astute. He just didn't bother to think this one through, or to get even a hipshot reaction from any of the NRO contributors (e.g., former federal prosecutor Andy McCarthy) who might have cured his confusion.

I'm hoping that Mr. Lowry will admit as much; unfortunately, as is all too frequently and frustratingly the case, my email to Mr. Lowry and most of my emails to others at NRO are bouncing (full mailboxes? indifference to clearing same? MSM-like hubris?). Heck, even Dan Okrent at least allows me to email him when the NYT goes off the reservation.

(3) Boger made the following comment | Feb 18, 2005 6:07:39 PM | Permalink

Mr. Beldar, a follow-up sir:

Lets stipulate that Fitzgerald is pursuing criminality based on Madame Plame and the Intelligence Identities Protection Act. Lets further stipulate that, per Lowry, its a legal slam dunk that M. Plame's employment and duties are in no way 'protected' under said act.

In the DC Circuit (or prior venue), could Abrams, armed with a slam dunk, have brought this issue to get relief for his clients?

(4) Beldar made the following comment | Feb 18, 2005 6:25:14 PM | Permalink

Boger, I haven't looked up the exact legal standard on what must be shown for a court to shut down a prosecutor's presentation of evidence to a grand jury, but I'm confident it's an extremely high standard — way above ordinary abuse of discretion or arbitrary, and probably something close to requiring "The prosecutor just called a press conference to admit that there's no reasonable basis for an investigation, that he has no personal or subject-matter jurisdiction, that the statute he's proceeding under was ruled unconstitutional by the U.S. Supreme Court yesterday, and that he's motivated solely by his overwhelming personal spite to ruin the target of the investigation for reasons entirely unrelated to the investigation." Even then — although I haven't cracked a book or tickled my keyboard to do any research — I seriously doubt that a witness would have standing to make this argument anyway.

I have trouble imagining how the facts of this matter could give Mr. Abrams (or the target(s) of the investigation) that kind of "slam dunk."

(5) Robin Roberts made the following comment | Feb 19, 2005 10:21:24 PM | Permalink

Boger, I must disagree that the fact that the CIA might claim that Plame was covered is itself support for the claim that she was covered.

This wouldn't be the first time that a government agency wanted to push a broader reading of a statute.

(6) Jim made the following comment | Feb 20, 2005 3:47:03 PM | Permalink

While I agree with most of your comments, isn't part of the argument that NO ONE has ever been prosecuted under this statute before? WOuldn't this add some sort of weight to the 'harassing' nature of the Special Prosecutor's insistence on this testimony? - the basis for quashing...

(7) Boger made the following comment | Feb 20, 2005 5:38:20 PM | Permalink

Mr. Roberts,

It has been reported (1) that the CIA made a serious and significant showing to Justice that Affaire Plame represented a violation of law; (2) that Justice returned to the CIA with a list of 11 questions to further establish facts relative to the violation; (3) that the CIA responded back to Justice with a classified, definitive report. Whereupon Justice, not automatically the handmaiden of the CIA (for a whole host of reasons), initiated and conducted a several month-long investigation. The result of which was a referral to a special prosecutor--not something done frivolously in Washington these days. Fitzgerald is hauling all manner of folks before a grand jury and taking others to court for contempt. He obviously is way beyond the first step of deciding whether a law might have been broken. Of course, it may yet turn out that no one is indicted. If that is the case, my position is that it will be because Fitzgerald either won't be able to positively identify the leaker, or he won't have the evidence to prove the actions of the leaker that were a disclosure of protected information, or he won't be able to prove the actions of the leaker were done wittingly (ie, with awareness that the information was protected or likely to be protected.)

In contra-point, Mr. Lowry without the least bit of showing to readers, simply declares that there has never been any protected information in the first place. All of the events in this matter are a hoax. Nothing that was said by Novak about Madame Plame was protected. In the first month or so of this affair that might have been acceptable punditry. Now, a year and a half later, it struck me as a very irresponsible and foolish thing to claim without substantiation.

When I had the foregoing exchange with Beldar, I did not realize who Lowry was. Literally, about an hour later I am watching the News Hour and there he is sitting next to Shields. I realized that I had seen him before as a substitute for the Republican point of view. So now I understand his agenda and probably have to cut him some slack for not acting like a more objective, competent reporter. And, legitimately, Lowry can say, Whoever said I was?

(8) Boger made the following comment | Feb 20, 2005 5:55:04 PM | Permalink

Jim, you may indeed have a point. No way can I step up to that one. As alluded previously, I have no legal background. But as a blogger I will take on most comers in slinging legalese. But rest assured, I don't have the slightest idea what I am talking about. As we all know, legal precepts have nothing to do with common sense. Perhaps someone else will address your point. I would be interested to hear.

(9) Beldar made the following comment | Feb 20, 2005 7:18:34 PM | Permalink

Jim, you're probably right that when/if someone tries to quash an actual indictment, that will be one argument they'll trot out. But the premise of the argument — i.e., that no other prosecutor has ever used the newer statute (passed after the Agree revelations) before because it's too harsh (or something) — is flawed. Perhaps instead the statute has been generally effective in deterring the conduct Congress intended to deter. Certainly it's drawn fairly narrowly, in such a way as to raise high hurdles for a prosecution, meaning only eggregious cases would likely be prosecuted.

(10) Beldar made the following comment | Feb 20, 2005 7:41:48 PM | Permalink

Boger, I wasn't just being polite when I started this post by saying that I'm a fan of Mr. Lowry's. You're correct that he's a pundit, not a reporter strictly speaking. But it's fairly impressive that at a young age, he succeeded to William F. Buckley's chair as the editor (i.e., editor in chief, top dog, gran patron) of National Review.

One of the first blog posts I wrote, back in August 2003, was a rebuttal to an op-ed he wrote for WaPo in which he lamented Dubya's apparent unwillingness to "lead from the front" in the culture wars; I thought he was wrong (but not silly), and I think the course of events (including the 2004 election) has proven me right. Mr. Lowry was gracious enough, though, to mention my rebuttal from The Corner and link it; blog links from NRO are like hens' teeth, and as a brand-new blogger I was flattered and grateful.

So I genuinely do respect the guy, and I don't often have cause to disagree with him so vigorously. But this time, I do. This new piece hasn't made much of a splash as compared to his WaPo editorial, though, and I'd be the first to admit that it's not as profound a question.

Thanks, as always, to all who've commented.

(11) Cecil Turner made the following comment | Feb 20, 2005 8:43:45 PM | Permalink

I'm not sure it makes much difference to the Miller/Cooper case, but I think you gents are missing a critical piece of data. Early in the scandal (October '03), the WSJ discussed an "internal government memo" that contradicted Wilson's account of how he was selected for the Niger mission. In December, CIA sources were complaining about the memo to the Washington Post, and we learn that it came from the State Department:

Sources said the CIA is angry about the circulation of a still-classified document to conservative news outlets suggesting Plame had a role in arranging her husband's trip to Africa for the CIA. The document, written by a State Department official who works for its Bureau of Intelligence and Research (INR), describes a meeting at the CIA where the Niger trip by Wilson was discussed, said a senior administration official who has seen it.
Last summer, when Sec Powell spoke before the Plame grand jury, we learned that the memo was passed to SecState via trip communications while the President was visiting Africa (sometime during the week of 6-12 July 03):
A senior State Department official confirmed that, while on the trip, Powell had a department intelligence report . . .that Wilson's wife had attended a meeting at the CIA where the decision was made to send Wilson to Niger, but it did not mention her last name or undercover status.
Novak's column hit the wires on 11 July 03. The Senate Select Committee on Intelligence report (covered in fair detail by Tom Maguire) added a few details.

To make a long story short, CIA's counterproliferation division, including Plame, hosted a meeting on 19 Feb 02 to discuss sending Wilson to Africa. A State Department (INR) guy took notes--and he likely had no idea she was a NOC. Somewhere between 7-10 July (after Wilson's NYTimes article, but before Novak's) a memo was sent to Sec Powell via White House trip communications, and it leaked. This doesn't seem to me to fit under the relevant statute.

BTW, Victoria Toensing made a similar case to Lowry's last month. And though I don't have the background to assess the legal arguments, as a practical matter this case looks to be going nowhere . . . which might be a better argument than citing a nonexistent privilege.

(12) Beldar made the following comment | Feb 20, 2005 11:21:37 PM | Permalink

Mr. Turner, thank you for commenting and for the links. But with due respect, my precise point is that it is not a "better argument" for the journalists, nor an argument that they have standing to make at all, regardless of how good or bad their privilege argument may be. That the prosecution's case may or may not turn out to be weak may or may not turn out to be a good argument for the potential defendant(s) to cite. I'm afraid that you've fallen into the same falacy as Mr. Lowry — this argument is not one for a witness to make, and it's way premature, your reference to press accounts to support the argument notwithstanding.

(13) Cecil Turner made the following comment | Feb 20, 2005 11:50:54 PM | Permalink

No due respect needed for my legal opinions, they're perfectly amateurish. And I thought the same (inappropriate for a witness) about the argument until reading Toensing/Sanford's article. As they claim some degree of authorship of the IIPA, I presume they are lawyers, and in their area of expertise. Their proposal looked rather non-standard to me, but I'm completely ignorant of the proper procedure:

The special prosecutor and reporters should ask Chief U.S. District Judge Thomas Hogan, who is overseeing the grand jury, to conduct a hearing to require the CIA to identify all affirmative measures it was taking to shield Plame's identity.
However, I do have a bit of background in operational security, and there's little doubt in my mind that the INR memo was the leak vector. More to the point, a prosecutor would have to prove it wasn't the source in order to prosecute the leaker under the IIPA . . . and that burden seems insurmountable. So if Toensing/Sanford's proposal was practicable, it certainly seems like something the Times would like to pursue. (Though personally, I'm unimpressed with such wrangling, and would rather get the whole story.)

(14) Kent made the following comment | Feb 21, 2005 9:50:10 PM | Permalink

And now along comes Rich Lowry (a journalist undoubtedly because his LSATs didn't have the juice), ...

That's a cheap shot. I have been an admirer of Rich Lowry since reading his book on the Clinton legacy, which, while it was not exactly nonpartisan, was thoroughly researched and reasoned, and acknowledged those few things Clinton did right and the many things the Republican opposition did wrong. I have a problem with the idea that the only reason he is an excellent journalist is because he would have been inadequate as a lawywer.

One need not suppose that I am an astrophysicist because my LSAT scores were inadequate. There is always the outside chance that I am an astrophysicist because my GRE scores were superb and I like astrophysics. There is even the remote possibility that not everyone considers a law degree to be the acme of scholarly achievement.

I don't mean to hack off the lawyers here. I just want to suggest the possibility that the non-lawyers here might justifiably be hacked off.

(15) Boger made the following comment | Feb 22, 2005 10:08:16 AM | Permalink

Kent, yeah maybe you are right, it probably was a cheap shot, but I would prefer the milder "snarky" label as Beldar sometimes uses.

In any case I stand by my humble non-lawyer opinion that that particular piece from Lowry was cheap jouranlism, ie not worth much. He should have been more circumspect about M. Plame not being a statutorily protected intelligence officer. The least he could have done is given a nod to his source/basis for his legal wisdom, undoubtedly the analysis of Toensing/Sanford (visit "similar case" above from C. Turner). I at least learned something from their work.

(16) Boger made the following comment | Feb 24, 2005 2:33:43 PM | Permalink

When I 'tuned in' to the recent MSM news regarding the contempt charges against Miller and Cooper, I was confused over where Novak stood in this tempest. I knew that an investigation by a Special Prosecutor was proceeding; I had expected a result before the election; I thought that it was essentially a matter of finding out who at the White House had given Novak the information on Valerie Plame. So I posted a query on BeldarBlog for enlightenment. My request has not gone unanswered.

The following is my present picture of Affaire Plame:

On July 6, 2003, Joe Wilson wrote an op-ed piece in the NYT criticizing Bush on his use of the Iraq-Niger-yellowcake intelligence. No doubt before lunch on July 6, 2003, the INR memo (pithily characterized above by C. Turner as the "leak vector") was resurrected by person or persons unknown within the Bush administration. As I understand it, the INR memo was a document prepared by a member of a State Department intel body known as Intelligence and Research (INR). Allegedly, this person attended a meeting at the CIA (Langley) in early 2002 on the yellowcake matter, and this person then prepared a report on the meeting for his employer (State). Joe Wilson's wife, Valerie, was in attendance at the meeting and was mentioned in the report--reportedly by her married name, not her maiden name, Plame

Then phones started ringing. The calls were between members of the MSM and the administration. It is not known who called whom. For example, a MSM personage may have made a call to an administration official for comment/reaction to Wilson's editorial; or, an administration official may have called a MSM mover and shaker to rebut/critique Wilson's charges. But beginning July 6, out of view of the public, a media frenzy was kicking off. We know for example that Judith Miller was talking to a person of interest in the investigation on July 6. (She won't identify the individual so she has been cited for contempt) That the Wilson op-ed piece quickly became a hot issue for the administration is supported by the fact that Secretary of State Powell had a State "department intelligence report on whether Iraq had sought uranium from Niger" (Newsweek) with him when he traveled to Africa with the President on July 7-12, 2003. Presumably this document is the INR report.

Then, the story broke the surface on July 14 when Robert Novak did his thing in WaPo. The 'causas belli' was: "Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report."

The Justice Department began an investigation on the strength of a complaint and information from the CIA. After six months or so, Justice referred the matter to a Special Prosecutor, one Patrick Fitzgerald. Other media folk (besides Novak) ostensibly chasing the story between July 6 and July 14 were Andrea Mitchell, Tim Russert, Matt Cooper, Miller and probably others.These individuals and other actors have been interviewed by the FBI and/or brought before a grand jury.

The net result of the foregoing summary is that I have been able to move from thinking this was a Novak-White house incident, to understanding (1) that a classified State Department document is at the heart of the matter--effectively, a smoking gun; (2) that multiple MSM types and more than one administration official were in communication about Joe Wilson (Novak talked to at least two); and (3) that it is not a given that the so called "leaker" was someone in the White House.

The applicability of the Intelligence Identities Protection Act has been part of this debate. Blogging at another BeldarBlog post, Neo suggested that the law requires a pattern of behavior for a crime to have been committed. Fitzgerald's interest in other MSM persons would tend to bear that out. Elsewhere I have read the following: "It is illegal for anyone to knowingly disclose the identity of a covert intelligence officer with the intention of damaging national security. Even without such an intent, it is a felony for any U.S. official with a security clearance to disclose an officer's identity to anyone not also authorized to receive such information." If this is accurate then I would think Fitzgerald would have a case if he can show that a person in possession of the INR memo (necessarily someone with a clearance) provided specific information from that document, which information was clearly classified in/by that document. Even if the "leaker" provided only the "Wilson's wife" connection--the reporter supplying the "Valerie Plame" independently--I would think there would be a transgression. If Fitzgerald can also show that the same person gave classified information from the INR report to more than one unauthorized individual, that might be game, set, match?

Also intriguing is that Judith Miller and the NYT are the object of another government lawsuit involving a leak from a government employee. The alleged incident occurred after 9/11, in September and October, and concerned a government decision to freeze the assets of the Global Relief Foundation and a Dallas-based Islamic charity, the Holy Land Foundation. Is Ms. Miller running amuck or does she just have a single 'mother-lode' source? In the Intelligence community?

(17) Boger made the following comment | Feb 25, 2005 5:09:30 AM | Permalink

Serendipitously, The News Hour updated the Plame story tonight, February 24, in a segment called Media Watch. Terrence Smith reported the Plame update as well as the other leak investigation involving Judith Miller. Fitzgerald is in charge of both investigations, interestingly. I was pleased that Lehrer framed the piece by asking Smith where Novak stood in relation to the investigation since it was his WaPo column that disclosed the leaked (unauthorized) information. Smith responded that it has been reported (he didn't say where, when or by who) that Novak has "testified" or at least talked to Fitzgerald and "named his source." Smith added that Novak has said that his source did not know whether or not Plame had operated undercover within the last 5 years. And evidently, per Smith, this is a requirement for there to have been a crime. Smith went on that, nonetheless, Fitzgerald is investigating these other reporters (Miller and Cooper) to see if there was a "pattern."

Well, pattern of what? Pattern of doing what Novak's source did, which doesn't constitute a crime (per Smith)? You add up a hundred 0's you still get 0. My opinion is that it is not as simple as Smith reported, there are other facts and/or there are other legal elements. I am just not prepared to think that Fitzgerald is conducting a criminal investigation before a grand jury with an existing, fundamental non-starter in the case.

(18) Cecil Turner made the following comment | Feb 26, 2005 11:41:59 AM | Permalink

Hey Boger,

Overall, I think your analysis is pretty good. But I have a couple small issues on the details, which I think change the comlexion a bit:

"Elsewhere I have read the following: "It is illegal for anyone to knowingly disclose the identity . . ."

I think that's a better description of the statute--the pattern thing is in one of the sections, but not the one of interest. But in any event, I'd recommend reading the statute directly. Here's what I think is the relevant section.

"the fact that Secretary of State Powell had a State "department intelligence report on whether Iraq had sought uranium from Niger" (Newsweek) with him when he traveled to Africa"

Based on timing and subsequent descriptions, I'd suggest it's more likely it was transmitted to him while he was on the trip. That's important both to assess the motive of the leaker(s), and suggests a broader range of suspects.

"If this is accurate then I would think Fitzgerald would have a case if he can show that a person in possession of the INR memo (necessarily someone with a clearance) provided specific information from that document, which information was clearly classified in/by that document."

Until the document is made public (if ever) this is necessarily speculation. But if the published description is accurate (especially: "it did not mention her last name or undercover status"), it's reasonable to assume the leaker did not know of her undercover status. Which makes any prosecution for leaking it problematic. Again, assuming the INR memo is the source.

BTW, the requirement is for her to've served outside the United States within the last five years. It's in the definitions section of the statute.

(19) Tom Maguire made the following comment | Feb 26, 2005 1:32:05 PM | Permalink

A late hit, and an attempt to Square the Circle - aren't there other laws against leaking generic classified info? Even if the 1982 Intel Identities Protection Act does not apply, maybe something else would.

We are on this like a cheap fedora on Matt Drudge, and need an attorney!

Our motivation - the Times has picked up the Toensig/Sanford argument, as of Feb 26. And Toensig and Sanford have a fairly heavy legal background in this.

(20) Boger made the following comment | Feb 26, 2005 9:06:37 PM | Permalink

Our debate is really one of two tracks: the leaker and the law.

With regard to the leaker, based on what I have been able to assemble as central, public facts, the nut of the question seems to be the following:

From the Judith Miller contempt proceedings it appears that Fitzgerald's investigation has a person of interest (a target, if you will), about whom Prosecutor Fitzgerald is assiduously marshalling relevant facts and information. That person is almost certainly Judith Miller's source, the identity of whom she is in contempt over. The question of the moment for me is whether or not that person is also Novak's source. If Miller and Novak's source are the same then it is likely that he/she will need a good mouthpiece.

However, the atmospherics (things I have read) are such as to suggest that, 50-50, they are NOT the same person. Therefore, it might not be kosher to automatically associate the "leaker" with Novak's "senior administration official." If Miller's contact and Novak's contact are indeed different persons then this leads to the other interesting idea that Miller's source might also have been Novak's source's source?

All of which brings us back to Mr. Turner's "leak vector," the INR memo. It has been reported that this memo detailed a meeting in early 2002 which was attended by "Valerie Plame" (D. Cloud, WSJ, 10/17/03), a meeting in which she put forward the idea of sending her husband to Niger to root around (for lack of a better description). This meeting is not to be confused with a later meeting at CIA attended by husband Joe (but not, ostensibly, by her) when the idea of a mission to Niger was pitched to him. In any case it seems germane to remember that it is likely the INR memo that 'informed,' so to speak, the original (real) leaker in this affair. The full content and characteristics of that document need to be known to make sense of this puzzle, particularly the legal underpinnings.

(21) Boger made the following comment | Mar 1, 2005 10:20:06 AM | Permalink

This 'kibitz' has two tracks: the leaker and the law.

With regard to the law, Mr. Turner provides a link (above) to the applicable statute: Section 421. Protection of identities of certain United States undercover intellignece officers, agents, informants, and sources. There are three subsections, a, b and c. All of the subsections relate specifically to "covert agents."

Another section of the statute, Section 426, deals with Definitions. There are 3 definitions for "covert agent." The first definition is: 426 (A). "A present or retired officer or employee of an intelligence angency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency (i) whose identity as such an officer, employee, or member is classified information and, (ii) who is serving outside the United States or has within the last five years served outside the United States."

In my non-lawyer opinion, the first definition, 426 (A), is the only definition that applies to V. Plame. Further, there are two fulcrum issues on which the question of applicability rests: (1) Is her status as a CIA officer working on matters of WMD proliferation (or the yellowcake matter in particular) classified information? (2) Has she travelled outside of the US on classified CIA business in the last 5 years?

What we don't know:

(1) Mr. Turner has suggested that the INR report is the "leak vector," ie, the source of the leaker's information that Plame was "an Agency operative on weapons of mass destruction" (Novak). We don't know, but like Turner, we strongly suspect it is the basis of the leaker's knowledge. Thus, I believe the INR report contains the 'smoking gun' information that Plame was a case officer working WMD, and also reflects that this fact is classified. While just the name of an intelligence officer may not be classified information, the connection/association/relationship between an intelligence officer and a classiffied operation is almost always a classified fact. I strongly believe that the Iraq-Niger-yellowcake investigation at CIA was a classified operation.

(2) We don't know, but it would be hard to believe that V. Plame-Wilson has NOT travelled outside of the United States on secret CIA business in the last 5 years. Even if she did so only once, was only gone for 24 hours and the business was other than WMD, I believe the requirement of the statute on this issue is met.

Going back to Section 421, which circumscribes the criminality in revealing the identity of undercover intelligence officers, agents, informants and sources: In my non-lawyer opinion, Section 421(a) applies to Affaire Plame based on the definiton of covert agent above. I also think Section 421(c), titled "Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents," applies as well if certain facts can be established.

Bottom line, nothing 'flies' if Ms. Plame-Wilson does not meet the defintion of a covert agent. One can only conclude, notwithstanding Lowry, Smith, et al, that the CIA's attestations to Justice (an eleven page classified report) crossed the requisite legal threshold on this.

(Novak probalby provided a partial clue in the end of his Oct 1, 2003, "CIA Leak" column: "While the CIA refuses to publicly define her status, the official contact says she is "covered" -- working under the guise of another agency."

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