Saturday, March 10

Unwinding the Ultimate Libby Verdict Spinout

In just the last few days we've heard just about every excuse imaginable about why and how I. Lewis "Scooter" Libby was wrongfully convicted for Perjury, Obstruction of Justice and Lying to the FBI.

We've heard - ad nauseum - about how there was "No Underlying Crime". We've heard the question repeated "Where was Karl Rove and Richard Armitage?" since both of them had leaked Valerie Plame-Wilson's identify to Robert Novak - not Libby.

But the absolutely ultimate argument, one which I first heard on the day of the verdict from Los Angeles Right-Wing Radio Host Tom Zeigler on KFI AM, is that Libby's Perjury conviction was unjustified because Bill Clinton wasn't removed from office and prosecuted for his (alleged) lies in the Jones case.

During his radio show Zeigler jumped on the statements made by Patrick Fitzgerald after the verdict was read.

It's sad that such a high-ranking U.S. Official lied.

Zeigler, like so many have, claimed that there wasn't any real crime here - alleging that Valeria Plame-Wilson was not a covert agent - but also that while in the Clinton case there was evidence of an underlying crime of sexual harrasment since bill Clinton has surrendered his law license and paid a $50,000 settlement to Paula Jones.

Zeigler also claimed this case had "nothing to do with the Iraq War since the 16-words were technically true"

Pardon me if this is a bit long - I've got a whole lotta debunking to do.

Part 1. Plame-Wilson and the Underlying Crime

First of all, Valerie Plame-Wilson actually WAS A COVERT AGENT. This has been reported by Newsweek, her CIA collegue Larry Johnson has confirmed her status as has her husband Ambassador Joseph Wilson (From Countdown)

WILSON: Well, clearly, the evidence that was—that came out during the course of this trial demonstrated that there was an obsession not with getting the facts out, but with destroying and impugning my integrity. And they used Valerie‘s employment and her status as a covert officer to do so.

And that wasn't the only time he said it.

OLBERMANN: The vice president issued a statement today saying he‘s very disappointed with the verdict. The president was quoted today as saying he was saddened for Scooter Libby and his family. Has any sadness ever been expressed by anyone in the administration to you or to your family?

WILSON: No, not at all. And I would have appreciated the president acknowledging some sadness for the fate of his covert CIA officer, who spent 20 years serving her country, many of those overseas, many of those in what‘s known as nonofficial cover, where she didn‘t even have the benefit of diplomatic protections if she‘d been picked up for espionage.

So why didn't Fitzgerald issue charges for Espionage and/or violations of the IIPA? Wilson has one reason.

Had there been a prosecution for the underlying crime, you can be sure that Mr. Libby‘s defense would have asked for every classified document that ever touched his desk during the six years that he was in office.

So I think the indictment was narrowly drawn, and it was understood that prosecuting under the underlying case, the IIPA, the Intelligence Identities Protection Act, might be too difficult because of the way that the act is drafted, and by the possibility of classified information not being available for the defense.

Bingo. Another factor in enforcing either the espionage act or the IIPA is the requirement that the perpetrator has full knowledge that the information that is being divulged is classified and that in the case of a CIA agent, that the agent is specifically an undercover operative.

Nowhere in this trial was it established that "Scooter" Libby knew that Plame was covert, but it is reasonable to infer that he might have suspected since some of those who told him about her suspected it.

From the FDL Liveblog - direct examination of Robert Grenier (CIA's "Mission Manager" for IRAQ).

I was going over it in my mind. I was hoping that I hadn't mentioned anything to Mr. Libby, I really didn't remember anything new. But what I did remember was the way I felt immediately after.

I briefly felt guilty, that I had relayed too much information. I was going through a mental justification about why it was alright to have relayed this to Mr. Libby.

Q. What part were you having concerns about. Having mentioned that Wilson's wife worked at the CIA, revealing the identity of an agency officer, although it was indirect.

I didn't know her name, so I didn't give her name, but by saying Joe Wilson's wife worked at the CIA, I was revealing the identity of a CIA officer. It wasn't absolutely necessary, that is information that we guard pretty closely, and if we don't have to say it, we don't.

Grenier himself didn't know Valerie and didn't know her status when mentioned her to Libby on June 11th. But what's really interesting is what Grenier said on cross-examination.

Z If the person at the CPD that you spoke to did not tell you Wilson's wife was covert. Why were you feeling uncomfortable.

G Because I knew that that person could be undercover. We were talking about a unit in DO the vast majority of whose employees are undercover.

There was evidence presented at trial that this possibility crossed Libby's mind as well, since he went to David Addington about it and asked him "how can you find out if someone is Covert at CIA?"

Addington also provided Libby with a fresh copy of the IIPA, which clearly indicates that prior knowledge of the agents status is a pre-requisite to violation of that statute.

(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not uthorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.

This may be in many ways exactly why Libby, Armitage, Fleischer and Rove were not charged with violations of this act - however they, particularly Libby, may still be potentially liable for violations of their Classified Information Non-Disclosure Agreement which requires that a person with a security clearance, prior to sharing classified information with anyone, verify the level of classification of that information as well as the level of access and need to know of anyone with which they potentially might share that information. Anyone with a high-level security clearance would have had this repeatedly drumed into their heads - particularly anyone at CIA, State or the White House - I know I did when I held a Top Secret/SAR clearance while working at Northrop-Grumman during the 80's. This may also be why Grenier felt "guilty" for oversharing information with Libby, that's exactly what you're not supposed to do, no matter who it is.

In other words - Ignorance is no Excuse!

The CINDA required Libby to find out if his suspicions about Plame, since she worked at CPD "where the vast majority of personell were under-cover" was accurate or not prior to sharing it with anyone - including Judith Miller, Matt Cooper and Ari Fleischer.

The record indicates he didn't do that - so I'm real sorry Tom - but there was an underlying crime in this case. Violations of the CINDA are not just covered by the IIPA, but also by Sections 641 (Theft), 794, 795, (Espionage) 798 (Disclosure of Classifed Information), 952 (Revealing Diplomatic Codes) and 1924 (Unauthorized Removal/Retention of Classified Info) of the U.S. Criminal codes.

Not to mention Treason!

Libby (and Cheney) would have been well aware of this, particularly when their media point person Cathie Martin balked when classified elements of NIE became part of the anti-Wilson talking points - all of this is why he made of a bogus story about Tim Russert and lied under oath. It was a desperate attempt to avoid his own (and Cheney's) criminal liabiliy for their actions.

It's also most likely that the reason Fitzgerald didn't charge Libby under laws relevant to CINDA is the fact that CHENEY IS THE ONE WHO ORDERED MARTIN TO STAND DOWN AND LIBBY TO TAKE POINT after she noted her unease at revealing classified information to reporters.

From Martin's Testimony.

I was still not certain about NIE and was a little uncomfortable talking about the NIE and I was aggravated that Scooter that I was calling reporters and I wasn't.


F What happened the rest of the week in terms of your access to comm strategy.

M I was not involved any more with senior people, I was involved with my staff.

F Were you the only press person who was excluded at that part.

M My understanding was everyone was in the dark.

Cheney froze Martin and her entire staff out and tasked the job of contacting reports to Libby who was clearly acting under his orders. Without Libby testifying truthfully to this and providing documentation to verify exactly what Cheney told him to do - or not to do - Fitz has no more case. Hence has he chosen to make the investigation inactive unless he gets a Proffer from Libby.

And to be fair, although the NIE was retroactively declassified via Executive Order to accomodate Cheney, the INR document on Wilsons trip and Plame's status wasn't and therefore deliberately revealing information from either - since they too were classifed - would still be a violation of Section 798 at the very least.

We don't need no stinking IIPA to find the crime here. What we do need is honest testimony from Libby.

Part 2. The Jones Case

Although Tom seemed to have omitted it in is rant about the Libby cases parallels to Clinton the "underlying crime" in the latter case was actually thrown out of court. The udge found Paula Jones accusations to be without merit and dimissed the case.

Yes, it's true that Clinton reached a settlement only because she was certain to appeal the judge's decision and keep this thing dragging up and down the court systems for years. She'd already been to the Supreme Court once. It wasn't an admission of guilt, he didn't apologize, he simply wanted the case to finally go away and it did.

Yes, it's true that Clinton agreed to have his law license suspended fo one year - based on inaccuracies in his testimony at the Jones deposition but I'm going to make a dramatic claim here so take a breath... CLINTON DIDN'T DELIBERATELY LIE UNDER OATH OR COMMIT PERJURY.

As was widely discussed at the time, perjury is only valid when it concerns a material fact. The question of whether Clinton made unwanted advances on Jones while Governor is significantly different from whether Lewinsky made advances on Clinton - which were reciprocated - while he was President. Hence, the Judge ruled that Lewinsky was immaterial to the Jones case.

Perjury also requires at least two independant witnesses who can confirm that the accused has provided false information to the court. In Libby's case there were 8 or 9 people who could confirm that the first time he'd heard about or discussed Wilson's wife working at the CIA wasn't from Tim Russert, including Russert. In the Jones case there was a State Trooper present or at least very near the events in question, and his story differed from both Jones and Clinton's - although it should note that no one ever accused Clinton of lying about Jones herself. In the Lewinsky situation - it was literally "He Said - She Said" and you can't prosecute a perjury case on that basis.

Neither of these point are why I say Clinton didn't commit perjury. These are simply the reasons why Clinton would have never been convicted of it, and why Ken Starr never even tried to seek an indictment - he knew didn't stand a chance in court. But he did stand a chance in Congress, and that's why and how Clinton's "secret" grand jury testimony wound up in the hands of the Judiciary commitee and on nation wide television.

For political points.

No, the reason I say Clinton didn't Lie is because he literally didn't lie. What he said in the Paula Jones deposition was technically and literally true, because a lot of the questions he were asked were based on incorrect information and he chose not to fix their mistakes.

For example they asked him if he'd ever been alone with Ms. Lewinsky in the Oval Office. In his report to Congress Ken Starr alleged that Clinton had denied being alone with her - but that simply isn't true.

Q. Mr. President, before the break, we were talking about Monica Lewinsky. At any time were you and Monica Lewinsky alone together in the Oval Office?

A. I don't recall, but as I said, when she worked at the legislative affairs office, they always had somebody there on the weekends. I typically worked some on the weekends. Sometimes they'd bring me things on the weekends. She – it seems to me she brought things to me once or twice on the weekends. In that case, whatever time she would be in there, drop it off, exchange a few words and go, she was there. I don't have any specific recollections of what the issues were, what was going on, but when the Congress is there, we're working all the time, and typically I would do some work on one of the days of the weekends in the afternoon.

Q. So I understand, your testimony is that it was possible, then, that you were alone with her, but you have no specific recollection of that ever happening?

A. Yes, that's correct. It's possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only person there. That's possible.

People have argued that this was a lie, but the fact is that according to the Starr Report nothing inappropriate or intimate occured between Clinton and Lewinski in the Oval Office. There was an adjacent room were the intimate activities took place. So in all honesty, he gave an honest answer about he and Monica being alone together in the Oval. Yes, it most likely happened - but there was essentially nothing to it.

If they'd asked him about the other room that would have been a different story - but they didn't and Clinton was not under any obligation to answer questions that they didn't ask, or didn't ask correctly.

The key question in both the Jones deposition and Grand Jury revolved around the issue of "Sexual Relations" - but one thing that is often left out of this discussion is the fact that Clinton was provided an "Official Definition" of this term by the Jones attorneys.

That definition included a laundry list of things that one person could do to or with another person. Clinton, according to his statements to the GJ, had read that definition carefully prior to both his testimonies, and he argued that he didn't do any of the things on the list (he didn't touch her body in specific places in order to create arousal) - but that Ms. Lewinsky had. She touched and aroused him, he didn't touch her.

Q: [I]s oral sex performed on you within that definition as you understood it, the definition in the Jones --

A: As I understood it, it was not; no.

For the most part Lewinsky's own detailed account (thanks to the Tripp tapes) of their various escapades matches Clinton's with two exceptions. According to her he once touched her breast (through her clothes - something that can happen inadvertandly on a crowded elavator), and the second time was the infamous "cigar incident." (And even then - he still didn't touch her! IMO that reticence on his part probably wasn't coincidental, I suspect he was establishing a sort of plausible deniability by not doing anything himself that could be construed as "harrasment" on his part. She came after him, not the other way around.)

Leaving aside the issue that Lewinsky wasn't "testifying" during her phone calls with Tripp as she vented (often going into extended crying jags) about her troubled relationship with Clinton, and the very strong likelyhood that she may have embellished some things here and there in the heat of the moment - we are still left with a two-sided square. What he said about a pair of intimate moment two years after the fact compared to what she'd said inadvertantly on tape a year and a half previously while emotionally distraught.

Can you remember exactly where you may have or may not have touched an intimate partner two years later? If they kept a diary of your most intimate encounters - would that diary and your recollection match up perfectly? I doubt it.

IMO these are not the most fertile grounds for a perjury conviction. People may fairly disagree with Clinton's opinion of the Jones provided definition of "sexual relations" - but that doesn't make him a liar or a perjurer, not in these instances.

Now I'm not a total "Clinton apologist" on this issue, I'm just saying he was extremely careful while testifying and that nearly everything he said in court was accurate - if anything he went out of his way to make sure it was literally and technically true. He did make some mistakes but only he and the judge actually know what they were in detail (based on his letter of apology to the court). All of that not withstanding It is fair and neccesarily to note that Clinton did lie to his Wife and Family. He also lied to his staff when he called Lewinsky a "Stalker". That was indeed a "cover story".

For that he should be, and has been punished - by them. He nearly got divorced as a result, destroyed his relationship with his daughter, and many of his staff left him in disgust.

Ken Starr argued that these statments themselves, although not under oath, were "Obstruction of Justice" and "Witness tampering" - even though at the time there was no witness list for the Jones hearings. Later after testifying at the Jones deposition Clinton quized his Secretary Bettie Currie about Lewinsky.

"You were always there when she was there, right? We were never really alone."

"You could see and hear everything."

"Monica came on to me, and I never touched her, right?"

"She wanted to have sex with me, and I can't do that."

Starr said this was witness tampering, but at this point in time there was a Jones witness list and Currie wasn't on it. It's far more logical and likely that Clinton was trying to figure out how the Jones attorney's had gotten their information about Lewinsky. IMO He was trying to find the leak and verify what he thought Currie knew - not feed her talking points to give a court (or the Press ala Cheney's hand written notes on Wilson's op-ed).

The differences between these cases really couldn't be more stark. Fitzgerald was very careful and methodical. He has not chosen to put forward wild charges which he can't sustain in court, he has not suffered from the type of rampant leaks that Starr's office did. After the original independant Counsel Robert Fisk cleared the Clinton's any involvement in White-water - he was replaced by Starr who after prosecuting Jim and Susan McDougal still found nothing on the Clinton's even after Jim eventually agreed to cooperate in order to avoid dying in prison.

Ultimately Jim still wasn't able to give them anything on the Clinton's and did tragically die in prison.

He locked Susan McDougal in Maximum Security and solitary and she never cracked. She continued to refuse to sign Starr's pre-written Proffer alleging bank fraud by the Clinton's because it was a lie.

He found nothing against them on White-water, but kept investigating it anyway. He found nothing on Travel-Gate. Nothing on File-gate. Nothing improper in the suicide of Vince Foster. Eventually thanks to Jonah Goldberg's mom he got in touch Linda Tripp and her illegal wiretaps of Monica Lewinsky and rode that horse straight into the loving embrace of the Republican Congress.

A Congress where both the Speaker and the Chairman of the Judiciary committee had both engaged in extra-marital affairs of their own yet had the temerity to claim the moral high-ground while condeming Clinton.

Starr never had a legitimate criminal case against the Clintons and it's completely ridiculous to ever allege that Scooter's conviction is similar to Clinton's Impeachment with anything other than a passing similarity. One was entirely a matter of maintaining the integrity of the criminal justice system, the other was a matter of political expediency and payback - I think most of us well understand which is which.

Part 3. The War Connection

In this third and final section I will address Zeigler's contention that the "16 words were completely accurate" in that Saddam Hussein did try to acquire uranium from Niger.

Ok, Joe Wilson found when he went to Africa that.

Former Prime Minister Mayaki told Joe he had rebuffed an effort in June of 1999 to arrange a meeting with the Iraqis

Mayaki had rebuffed the meeting because of the UN Sanctions on Iraq and his presumption that the only possible reason for the meeting was an attempt by Iraq to gain access to Niger's only real export - Yellowcake Uranium.

He also learned fromFormer Minister of Enerty Manga that...

"there were no sales outside of International Atomic Energy Agency (IAEA) since the mid-1980s". He went on to tell Ambassador Wilson that the uranium was tightly controlled and accounted for from the time it is mined until the time it is loaded onto ships.

In fact, the Nigerian government had no real control or access to the yellowcake at all. It was entirely under the perview of the IAEA and the french companies who owned the mine which means that even if Prime Minister Mayaki had taken the meeting with the Iraqis he couldn't have given them what it was he assumes they would have asked for.

The only way for Iraq to get ahold of Yellowcake would have been either through the IAEA or the French. (Fat chance!) It doesn't even make sense for them to try and go through Niger because that door-way was sealed shut.

Another problem in this "Saddam was trying to get Uranium" bugaboo is the fact that the reason Joseph was sent to Africa was to confirm the accuracy of a sales receipt from Niger to Iraq for tons of Yellowcake. So allegedly Saddam wasn't trying to get the uranium - he already had it. (What?!?)

Except that he didn't.

The receipt was a forgery.

Long before that document appeared they had already bought 1,000 tons of Yellowcake in the 80's which was now under the control of the IAEA.

Let's also add to this pile, the fact that according to the Duelfer Report Iraq had essentially dismanted it's Nuclear Program back in 1991.

Saddam Husayn ended the nuclear program in 1991 following the Gulf war. ISG found no evidence to suggest concerted efforts to restart the program.

Efforts that could preserve the progress and talent that had been developed up to the 1991 war included keeping the nuclear cadre engaged in a variety of projects, such as rebuilding of Iraq’s infrastructure. However, the nuclear program was ended and the intellectual capital decayed in the succeeding years.

These facts were revealed and confirmed to the IAEA in the mid-90's by Gen. Hussein Kamel when he defected. Additionally there was confirmation from Iraqi Foreign Minister Sabri whose information pointing out the Iraq WMD stockpile had been destroyed in the early 90's was relayed to both the President and Vice President in personal briefing by Tenet in 2002.

So here's the question - why was Iraq trying in 1999 to have a meeting with Nigerian Officials supposedly to buy Uranium, which they had already bought 15 years previously, for which there was a shiny new (duplicate/forged) receipt, in support of a program that had been shutdown 8 years before and hadn't been restarted?

Only Logical Answer: They weren't!

And George Tenet had repeated told this to the White House prior to the State of the Union - only to be ignored and have his objections distorted.

The officials made the disclosure hours after they were alerted by the CIA to the existence of a memo sent to [Bush]'s deputy national security adviser, Stephen J. Hadley, on Oct. 6. The White House said Bush's chief speechwriter, Michael Gerson, on Friday night discovered another memo from the CIA, dated Oct. 5, also expressing doubts about the Africa claims.

The disclosures punctured claims made by [Condoleezza Rice] and others in the past two weeks. Rice and other officials had asserted that nobody in the White House knew of CIA objections, and that the CIA supported the Africa accusation generally, making only technical objections about location and quantity. On Friday, a White House official mischaracterized the CIA's objections, saying repeatedly that [George J. Tenet] opposed the inclusion in Bush's Oct. 7 speech "because it was single source, not because it was flawed."

Tenet's memo and phone calls to the White House resulted in the Niger claims being pulled from the President's Cincinati speech in Oct 2002 - only to be reinserted at the State of the Union for 2003.

After the Wilson Op-ed and Libby's inquires to the CIA and State (which eventually resulted in the outing of Plame) the White House received this answer from CIA and Tenet.

CIA analysts wrote then-CIA Director George Tenet in a highly classified memo on June 17, 2003, "We no longer believe there is sufficient" credible information to "conclude that Iraq pursued uranium from abroad." The memo was titled: "In Response to Your Questions for Our Current Assessment and Additional Details on Iraq's Alleged Pursuits of Uranium From Abroad."

Please note that this was before Libby talked to Judith Miller on June 23rd and told her the exact opposite by claiming that the evidence supporting Iraq's WMD and Nuclear ambitions were "even stronger" in the classified portions of the NIE than most of what Congress had seen prior to voting for the war.

This was a flat-out lie.

The classified portions of the NIE were where the State Dept Alleged that the Niger documents were forgeries. It was where the Energy Dept argued that the anondyne coating on the aluminum tubes that Iraq had bought made in unsuitable for use in a centerfuge.

So just who'se bullshitting who here?

Libby in leaking Plame's familial link to Wilson and alleging nepotism was simply keeping the same spin going that had been used to trick Congress into supporting an unjustified War in the first place.

It's that simple, it's that plain - and it's a sad shame that anyone has to spend this much energy to prove it while debunking bat-shit crazy wing-nuts, but unfortunately that's the world we're living in.

Libby may indeed be pardoned just as Susan McDougal eventually was - it's clearly in Bush and Cheney's own self-interest to do so, particularly with members of his Jury advocating it - but until that time, let's try and keep all the other Libby/Clinton parallels to a minimum, ok?


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