Wilson/Plame/CIA leak/Libby indictments: piercing the opacity! (Full version)

Discussion in 'Political Discussions' started by Orson, Oct 29, 2005.

Loading...
  1. Orson

    Orson New Member

    There's a stimulating consideration from "The Corner" below of the Wilson/Plame-CIA leak/Libby indictment. Having heard that Libby was a zealot on Iraq, defending and advocating Bush policy in the way discussed here makes complete sense of the entire matter. For reasons of constitutional conflicts worth tolerating (ie, balancing the pursuit of ethical rectitude versus the necessity of vigorous free debate), the full "conspiracy" shall not be revealed today!

    Some have said that unlike Clinton, there was no underlying crime with the PlameGame investigation. Clinton was impeached because Starr, the Independent Propsecutor with wide discretion, was investigating what appeared to be payoffs via Vernon Jordan's law practice in DC to Hubbell, already under prosecution and in court, to keep him quiet. Combined with the dual calculated lying by Lewinski and Clinton under oath, an ongoing and seemingly related conspiracy appeared to be occurring; events substantiated a like fact pattern of covering up actual crime - ergo, a concluding Whitewater investigation shifted to the president, and Whitewater led to impeachment. But nothing like this chain of events underlies Fitzgerald's Plame inquiry.

    Andy McCarthy here argues that while there was no causally related crime, there was an underlying (ie, unprosecuted) ethical breach, but explains why prosecutorial discretion has been, very likely, properly exercised by Fitzgerald. Here, there were real executive-function obligations (ie, the people's defense and the prosecution of war) at stake, not merely private greed or comfort like Whitewater and Clinton, respectively. In the process, it helps explain Libby's otherwise bizarre lying. Surely he knew neither reporters or the notes he turned over would back him up - to suggest he was too stupid is too unlikely. As some have suggested, Bush can let the process go forward, and if worse come to worse for Libby (eg, lost of jail time), the Prez could emulate Clinton (horrors!) and pardon him while just exiting office.

    What's interesting is how this scandal is like Iran-contra: WH agents duly pursuring defense of executive policy against recalcitrants combating it - but in this case it's not a rival branch acting in conflict over delegated constitutional authority of another, but a subordinate administrative unit effectively attempting to sabotage management! Or else just a rogue element within another huge federal bureaucracy! (I mean, since when does a spouse [Wilson] of a "classified" CIA employee [Plame] go public in the NYTimes on a dodgy "mission" - eg, lacking a non-disclosure agreement that's SOP for most any CIA overseas work, drinking tea with buddies and calling it a good day's work - then expect to be treated like private Joe citizen, all the while undermining a an elected authority's war effort? That passes no smell test. As Micki Kaus put it, Wilson is at least a show-boating, insufferable braggart.) I think the case for both prosecutorial and executive discretion is therefore stronger now than in Reagan's or Clinton's second term.

    This suggests that the anti-Bush fanatic's charge of "Libby as fall guy" for Chaney (or others) wrongdoing has something to it - but misses the mark. It doesn't admit what the media doesn't either (but needs to): that the administration WAS intending to properly defending its own policies against what amounts to an attempted domestic CIA coup by the serially lying Wilson - ie, an objectively bad guy, even if you oppose Bush's policies. There are limits to cricket and policy debate - which goes for both sides. At the same time, Libby, as explained below, overstepped his bounds.

    This little "scandal" achieves nothing and resolves nothing. It seems that the overt justification for the administration's counter-criticism will have to wait until after it's run its course. But legitimate or not, the disputed fact that the Plame "outing" was intended to counter-criticism by Wilson is implicitly true if one accepts McCarthy's reasoning below.

    What remains undone is that Wilson hasn't "paid the price" for his many lies. The media, being central to the story, are never reluctant to carry the left's water and overlook Wilson's perfidy as long as they look good and interesting while doing it.

    Put it another way: Truth not being told, Justice is deferring to the CIA's need for protection; the executive is consenting to this need - despite Wilson's outrageous claims (ie, he never refuted Bush's 16 words in the State of The Union speech claim that Iraq tried to get uranium from Africa - the Butler commission and such). And the "open" debate (sans the MSM telling the truth about Wilson) goes on, and we all live to fight another day.

    The facts show that Libby was the most zealous at getting out criticism against Wilson (didn’t he tell nine or so different reporters about Plame?) – therefore he became the logical scapegoat for the administration's understandable yet ultimately unethical lapse in judgement.

    -Orson
    --------------------------------------------
    Friday Oct 28, 2005

    THE INDICTMENT DOES NOT ALLEGE ALL COVER-UP AND NO CRIME [Andy McCarthy]
    The indictment does not allege an offense of the espionage act (18 USC 793), but it does indicate there may well have been one.

    There are several crimes laid out in the espionage act, but the one that applies most closely on these facts requires the government to prove that a person (a) obtained classified information lawfully (e.g., in his official capacity), communicated it to someone not entitled to receive it, and (c) did so willfully.

    The indictment charges the mere fact that Plame worked at the CIA was classified information. (“At all relevant times … Valerie Wilson was employed by the CIA, and her employment status was classified.”)

    It is worth noting that many people, including me, have been wrong about this. I assumed that the fact that she was a CIA employee was well-known and not classified, but that some aspect of her relationship with CIA was covert and classified. The latter may be true (Fitzgerald, as he should have, declined to comment on it), but it turns out to be not so important because the very fact that she was a CIA employee was classified. It really doesn’t matter whether we think it should have been classified or not. The fact is that it was. People privileged to handle classified information well know that they mustn’t disclose it even if they personally think there is no good reason for it to be classified or that some higher purpose of theirs would be served by disclosing it.

    So, if the allegations in the indictment are true, then Libby did obtain classified information in his official capacity and he did share it with reporters who were not entitled to receive it. The rest of the equation is: did he act willfully?

    Fitzgerald did not charge an espionage act offense. To the extent he spoke about the act today, he explained that he thought it was a statute that had to be used very judiciously to avoid its becoming a British-style official secrets act. That is the policy reason for not charging it, and it could be argued either way. I think he was right, but reasonable minds could differ.

    What also could be argued either way is the obvious evident reason for not charging the espionage act, which is the difficulty of proving willfulness. Pat did not go into this today – again, appropriately; as he noted the prosecutor’s job at this stage is to announce charges, not vouch for them, and not to discuss charges or persons not indicted. But that doesn’t mean we can’t analyze it.

    Willfullness is a high mental state in the criminal law. Although the adage that “ignorance of the law is no excuse” generally does apply, a willfulness requirement in a statute comes close to making ignorance of the law a defense. The government must prove that the defendant was fully aware of the unlawfulness of his actions (not that he knew the statute number of the crime but that what he was doing was illegal) and that he performed those actions with a bad purpose.

    There is basis in the indictment to suspect that Libby acted willfully – he is alleged to have done a lot to inform himself; to have asked Judith Miller not to source him as a senior administration official but as a Hill staffer (strongly suggesting that he knew what he was saying should not be said); and to have lied about what he said and how he knew what he knew (strongly suggesting he was worried about having said what he said, and worried about having it revealed that he came about the information officially rather than casually).

    On the other hand, though, Libby also clearly was not trying to out Plame for the purpose of endangering her, punishing Wilson or harming the CIA. He was trying to do something that was legal and appropriate: to discredit Wilson and knock down Wilson’s misleading story about why he was sent to Niger. He should not have done it the way he appears to have done it, but he surely was not doing what Wilson and the Left have been claiming.

    So, while Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country or help an enemy [which is what we expect of the executive branch - Todd]. That is what the espionage act is most concerned about. Under the circumstances, he was given the benefit of the doubt on his state of mind. I think that was an appropriate exercise of restraint on Fitzgerald’s part. The charges brought are serious ones. There was no reason to bring a questionable one just to rebut a talking point about how it’s only a cover-up and not a crime.
    Posted at 07:04 PM
    http://corner.nationalreview.com/05_10_23_corner-archive.asp#081180
     

Share This Page