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December 03, 2006

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hmm could it be a binder on ... The Source.

I saw a parallel between some signing statements' 2003 publication dates and the four ew listed, one was the result of bartering over Halliburton's choice of a civil engineering subcontractor in Iraq. Also, I had hoped to leave a web address for a document the court site seemed to lose two days prior to the 38p MoO you linked; I let Swopa know at the time so you probably already viewed that, also a MoO though more procedural and less itemized and only 15p. I liked the judge's comparison of his austere responsibility to that of a comedian skit character in the 15th MoO. I have some historical data I should have organized on the timeframe you asked about. I will check back if I find something substantial, and will look in the emptybinders, or, more appropriately, the missingbinder.

Very good recap, emptywheel. [I gave my own long run-down in Saturday night's Late Nite thread at FDL, focusing more on the Judge's handling of this, so won't repeat it here.]

For Binder #11: the Section 6(a) appeal may well fill one up [not to mention a possible 6(c) appeal to follow]...

Yo emptywheel:

I got a spare binder you could use

but you have to sign it, and give it back when this is done

then I could tell people I knew you when ...

(bowing and scraping)

we're not worthy

okay, maybe some of us are worthy

Libby's lawyer doesn't understand ordinary people... the folks who will be sitting on the jury.

Telling them that Libby was distracted by the "very important"(tm) configuration of the CPA or the crisis of an international insult or the arrival of another bin Ladin tape isn't going to sway them. Dealing with such "very important"(tm) stuff was his job. He also had a staff trained to deal with preparing papers and screening phone calls and whatever else assistants to assistants do.

If he argues that he was facing an appointment with the proctologist the day after testifying "and my mind went blank with fear", somebody on the jury might mutter that he was still full of shit, but anybody could be forgetful while worrying, even somebody "very important"(tm).

By pegging a defense to the distant dramas of international incidents and double-super-secret classified documents, those human beings aren't going to care why he lied.

I agree with hauksdottir

what scooter libby's defense boils down to is that he was too busy to do his job

under the terms of SF-312, there is NOTHING that scooter libby could be doing that is more important than protecting top secret information

saying "I was too busy to remember when I outed a spy" ain't gonna play in Peoria, or before a DC Jury

there's one thing I'm not clear about;

how does scooter present this information to a jury ???

does he have to take the stand to introduce the evidence about how busy he was ???

if scooter DOES have to take the stand to introduce this stuff, I can't wait for that to happen

testifying before a Grand Jury was how scooter got his ass in a crack in the first place, and I don't think scooter is gonna make a very sympathetic witness in his own defense

and after scooter is done presenting his sob story, Patrick Fitzgerald gets to cross examine the witness

can't wait for that one

But for the moment, can I just observe that Scooter Libby has better standards of note-taking than just about any journalist involved in this case?

Heh. That would be funny except that it's true. Judy.... JUUUUUUUU-DEEEEEEEEEE, do you hear the federal prison calling? Everyone say it with me: "Conspiracty to obstruct justice..."

freepatriot

Yes, absolutely. Libby had to say, definitively, that he would take the stand. Several of Walton's decisions assume that. So Fitz will have him--and almost certainly Dick--on the stand.

I think these people believe they are Ollie North. They don't realize that, as for Scooter, he made a lot of mistakes in his GJ testimony. And as for Cheney--NO ONE believes him when he goes on Russert and lies his ass off anymore.

"I was too busy to remember when I outed a spy" at the SAME time I WASN'T TOO BUSY to GOSSIP with journalists and have BREAKFAST with Judy Miller at the St. Regis HOTEL!

"I was too busy to remember when I outed a spy" at the SAME time I WASN'T TOO BUSY to GOSSIP with journalists and have BREAKFAST with Judy Miller at the St. Regis HOTEL! for two hours.

"... and have BREAKFAST with Judy Miller at the St. Regis HOTEL! for two hours."

And a long phone conversation with her at the end of the same week.

This is the part of things that makes me think Libby is angling for a pardon. Every part of your analysis of why one won't happen makes sense, EW, but is he really going to set himself up to be asked questions about this on the stand?

Even more delicious is the prospect of Big Dick being asked what he knew about Scooter's chats with Judy.

To be fair to Libby, though, there is also a quality component as well as a quantity component to his memory defense, as Walton emphasized in his ruling. It was the weighty nature of what Libby was busy with that led him to misremember his conversations where he did, and, presumably, mis-make up others where he did that.

The two hour meeting with Miller will also shade into the other major compenent of Libby's defense, apparently: he will explain all the time and attention he spent on Wilson as entirely a matter of responding to him and the controversy on the merits, which obviated the need to respond by outing his wife.

Fitzgerald will obviously argue that Libby would remember Plame because he was in fact interested in that detail of the overall response to Wilson, which took up a lot of his time and attention that week, especially since his boss was so interested. What's more, the extraordinary nature of what Libby was being told to do by his boss - disclose the NIE at the direction of the VP and the President himself and so on - made the events memorable enough that it is implausible that Libby would have forgotten what transpired, including his dislosures of Plame.

There's one other curious thing about the Walton ruling, which might just be misstating Libby's case. He says,

the defendant anticipates introducing classified information ... to demonstrate that to the extent that he was involved in an attempt to respond to Ambassador Joseph Wilson's findings regarding Iraq's relationship with Niger, such efforts were for the legitimate purpose of addrssing the merits of those findings, and had nothing to do with disclosing Ambassador Wilson's wife's--Valerie Plame Wilson's--affiliation with the [CIA].

Two things about this. Walton, at least, comes close to saying "addressing the merits of those findings," does not include mention of Plame's CIA affiliation. Don't know whether Libby would totally endorse this stance, but if so, it would pretty much refute the favorite wingnut talking point, that a trip to Niger really is a "boondoggle" and Joe Wilson was very lucky he had a wife who could send him to such places.

I guess Libby doesn't want to look like a stupid rabid wingnut in front of 12 intelligent residents of DC.

THe other thing I found intriguing about Walton's phrasing is the emphasis on the "findings," which suggests they're going to emphasize my favorite prop in this story, the trip report on Wilson's trip.

so scooter has to testify ???

scooter libby is DEAD MEAT

I doubt that many people here have ever testified in their own defense

I have

it's a mine field

and I was telling the truth to begin with. I didn't start of with a pack of lies and try to dig my way

in case anybody's interested, I was aquitted on all counts (my knowledge of Pro Football saved my happy ass)

I think a "Leak" binder would be helpful, to catalogue all the illegal leaks of classified info from the WH to the media before Deadeye got his "authorization" to do this (which I understand to be vague/shaky).

Don't know whether Libby would totally endorse this stance, but if so, it would pretty much refute the favorite wingnut talking point, that a trip to Niger really is a "boondoggle" and Joe Wilson was very lucky he had a wife who could send him to such places.

In all my years of close study of the right's inconsistencies in dealing with the Wilson thing, this is perhaps the most consistent inconsistency. Righties absolutely cannot decide whether the fact that Wilson's wife had something to do with his trip is damning or not, and they vacillate on the question depending on the debate.

Libby, however, fully recognized the danger in expressing the belief that the trip was a junket set up by his wife, and testified that he thought Wilson was fully qualified for the trip and didn't indicate to reporters he knew anything about her being involved. That's reported in Fitzgerald's May 12 2006 filing on the articles he wants in. (Miller's testimony backs Libby up as far as she goes - according to her, Libby never said anything about Wilson's wife being involved in his trip.)

Poor Scooter. He takes better notes than I ever could, yet he forgot to write down--anywhere--that he talked to Tim Russert, who told him Wilson's wife worked at the CIA.

I understand how a guy who is managing the entire US government needs to take notes (in great detail). But dangit! what a terrible TERRIBLE time to be without a pad and pencil...right when a news reporter is revealing CLASSIFIED information to Scoots! "Hang on, Tim. You're saying she what? Really? At the CIA? Gosh, on WMD...you don't say? You don't mind if I jot this down, I'd like to check into this myself? Well, damn! My pencil just broke!"

The Baby Jesus must have been crying that day.

Poor Scooter. I know how he feels because everytime I get busy, I start lying. Especially to FBI agents or under oath. Can't help it really, its a disease called "Nixonosis".

I must state, particularly in light of very recent rulings about corporation's being required to keep their employees email, blackberry records, phone records, and even copies of backups, and memory cards, etc., for later possible Federal perusual, that many times you just don't put down some notes or work. This of course is only the most important or dangerous stuff, that you will remember anyway. Perhaps only 1 detail of a 1,000, or 10,000.

I sure don't. And then there are the "private notes." Not left at the office, on any machine, or "memory only."
[[And a word to the wise, any machine may make a copy of anything that you write or type on that machine if it has the right software.]]

Someplaces, everything has a copy made, except handwritten, and then there are policies on those.

At times a "good memory course" is an asset even if you consider you have a good memory. Or "reminders." In ancient times, they put special knots on a cord, or carved a staff, etc., to reinforce memories.

I must state, particularly in light of very recent rulings about corporation's being required to keep their employees email, blackberry records, phone records, and even copies of backups, and memory cards, etc., for later possible Federal perusual, that many times you just don't put down some notes or work. This of course is only the most important or dangerous stuff, that you will remember anyway.

This is of course the response to Libby's claim about how it is telling that the Plame information was not memorialized in talking points and so on, and that it was evidently not something he talked about a lot with other people involved in the pushback against Wilson.

I have no doubt that Libby, with his elaborate sui generis shorthand, also had a beautiful memory palace or whatever.

A little more perspective on the relative quantities of classified information contained in different categories of the 6(a) ruling's material is provided in Libby's CIPA Section 6(f) reply filing on Monday:

"Through the narratives in his Consolidated CIPA Section 5 Notice, Mr. Libby provided the government with the overwhelming majority of the classified information in Topics 2 and 3 (enhancing the United States defenses for homeland security and nuclear proliferation by Pakistani scientist A.Q. Khan and efforts by the United States to stop his activities) and with much of the classified information in Topic 1 (threatened attacks on America and American interests by Al Qaeda, Hezbollah, and other terrorist groups). The bulk of the classified information that the Court has found relevant and admissible on the other [six] topics appears either in the narratives or in Mr. Libby's notes, which he created and which the government could not even interpret without the defense transliterations. And the defense provided the government with the classified information in defense counsel's [6(a) hearings] [testimony] proffers, which link the classified information in Mr. Libby's CIPA Section 5 narratives and documents to his theory of defense."

[Emphasis added]

Seems as though this creature called a "narrative" is some new CIPA-specific hybrid cooked up by Libby and his graymail attorney Cline to confound the CIPA process and the Judge, and to make Libby's "memory defense" seem like more of an integral defense against the charges Libby faces than would otherwise be the case. It also seems to be doing the trick, with regard to the graymail dismissal threat, as the government has been objecting strenuously to the amount of classified detail included in these Libby-manufactured narratives, so far without much effect on Judge Walton. And judging by the filing, also on Monday, of the government's second Section 6(c)(2) affidavit, the Judge is going to end up having to make a decision and choose between the IC's national security concerns about disclosure of at least some of the 6(a)-ruled-relevant evidence, and another "slanted" ruling for Libby which would presumably lead straight to a second [6(c)] appeal by the government.

[To John L. above: note that the 'disappeared' Opinion from 11/13 was connected to the Judge's first denial of a 6(c) substitution motion from the government - an Opinion which Walton later vacated (thus the disappearance). We're presumably now awaiting the Judge's revised, final Opinion and ruling on the government's revised 6(c) motion, to which Monday's new affidavit is addressed.]

pow wow

Are you quite sure that the CIPA 6(c)(2) affidavit from the Attorney General is the second one that's been filed, and is just basically the routine accompaniment to a new round of 6(c) substitutions from Fitzgerald?

I don't know Jeff.

There are many counter arguments that can be made about why something is not there, that some might consider to be obviously missing by evil design.

For example, I am sure there is a lot of stuff in Libby's notes about 9/11 but an absense of anything linking him to a plot with the Saudis to do the dastardly deed doesn't mean he was involved in the plot.

It is hard to prove by "weight of absense" anything! The argument can be turned on its head too easily. Not to say that if the argument is impressive, that a jury won't be swayed.

But Fitz is not very impressive to me. He seems a bulldog.
Not a Clarence Darrow, or William Jennings Bryan and certainly not the real but legendary Daniel Webster.

"even the damned may salute the eloquence of Mr. Webster"

Not Fitz.

There are many counter arguments that can be made about why something is not there, that some might consider to be obviously missing by evil design.

Of course that's the case. The point is that there is a fully coherent explanation for Libby's actions and omissions based on the hypothesis that he knew the Plame information was sensitive and that, while he wanted to get it out, it would be unwise to do so in concert with too many others and that he would be deeply unwise to put the information in the standard talking points, and so on. But that's just a coherent explanation, it's not itself evidence of that explanation, much less the only possible explanation. But I don't know what else you'd expect.

It is a much more plausible explanation for Libby's conduct, however, than your counterfactual about Libby's possible participation in a plot with the Saudis for 9-11.

That's great that Fitzgerald is not very impressive to you. Congratulations.

I also wager that no one actually damned by Mr. Webster saluted his eloquence. The very idea strikes me as ridiculous. I have no doubt it was not one of those actually damned by Mr. Webster who offered that line.

pow wow

I see you're right, Fitzgerald submitted an identical notice regarding CIPA 6(c)(2) in November. So it does look like this is just part of the next round of proposed substitutions.

Libby's hinted strategy of working his way toward a pardon doesn't resolve the larger problem Cheney et al face as they are reeled ever closer by Fitzgerald's flyrod to the inside of a court rooms. I shouldn't use flyrod as this reminds me more of SHARK fishing off Baja. But it is interesting to note that time has dealt Cheney less power to dissolve Fitzgerald's quest and the swords are about to be crossed.

mainsailset

I've shared this several times on this blog. But a friend of mine, of the female persuasion, once fished against Dick in the Jackson Hole one-fly--a chichi fishing contest in Dick's backyard.

Said friend fished the pants off the future VP.

That she kicked his ass makes me happy. That he impressed her enough in the boat to turn her into a Republican does not.

EW - good story.
Several years ago I attended a conference in that area and during the break we could choose to go on a bus tour that included one of the 'elite's' houses...as we walked through the house I noticed 2 pictures in the master bedroom, 1 of the master standing with the Pope and right next to it the master standing with Dick...I quite literally ran from the house heart pounding and wanting to wash my hands. On our way back the tour director took note of the gorgeous expanses of land dotted with oil pumping rigs which he pointed out had fouled the streams and rivers of the area.
Few fish, fewer ducks. Thanks Dick.

Only rarely do I visit that site, pow wow; I appreciate the update. I got my information from a fast paced academic website that follows many issues important in Ew's studies, there.

In reviewing the 4 mystery dates, I continue to see parallels with signing statements, as several of Ew's listed dates preceed by one day the publication of the statement; see for example, there. I would expect Addington was the principal designer researcher but Libby could have been more engaged in writing those documents during the June 2003- March 2004 timeframe of Ew's listed mystery dates on which subsequently now Libby's memory is a total blank for the day prior to publication of each signing statement.

In scanning some of the detainee cases' timelines and milestones at the supreme court, there are several habeas cases which definitely would have been important neoCon transition points which occurred within or closely following that 9-month timeframe. It is important because the 2003-2004 years were a time of transition, when some detainees were held in miserable condition for years without reprieve incommunicado and the congress had done little to address the thorny problem, while the armed conflicts had morphed into new shape and clearly the matter of the detainees was another prominent flaw in the work of the administration. A threshold was approaching beyond which courts were going to engage the apparent lapse, as habeas is at the very foundation of legal structure; and the international community was having problems with the protraction of the process as prosecuted by the administration.

Also inside that nebulous circle on the calendar were other occurrences which certainly would have the vice president's office working overtime. Sy Hersh's NYorker article appeared on the website in the third week of October 2003, and on the newsstands the end of October 2003. And in December 2003 the DC Circuit court's ruling protecting Cheney's energy taskforce attendance roster from publication was reversed when the supreme court certified the appeal for hearing; Cheney was afforded cover by the Supreme Court, as it happened later, but I would expect that December 16 cert at Scotus caused Cheney and Libby some worry.

As for the precision of notetaking headers, that practice is common, and required; at least so it was in our government work when I was involved in communications with those kind of VIPs. You need to jog the memory; and small details like where, when, how and the like help visualize the setting for the meetings; when you are busy, the minutiae are useful years later for precisely that kind of memory art. People who do that for a living function on that level. Besides the note pad, I would expect there is a vest pocket personal calendar book, even more skeletal in specificity but with all the key topics and decision trees; it depends on how Libby works, but I would expect him to rely on pen and paper and layered notebooks.
The prospect someone who is a professional in that activity could forget the decision to muddy the waters by using orchestrated revelation of a spouse spy identity in the press as a countermeasure seems disingenuous. It was a messy and turbulent strategem, and risky for Libby. I would expect part of his doublechecking after the InstaReDeClassification approval was recognition the alibi better be perfectly airtight.

John Lopresti said: "The prospect someone who is a professional in that activity could forget the decision to muddy the waters by using orchestrated revelation of a spouse spy identity in the press as a countermeasure seems disingenuous."

This is true, but it implies that Scooter's defense is "I forgot that I outed Valerie Plame." But the reality is his defense is "I misremembered all the talk about Valerie Plame (from whom I heard her identity, to whom I comunicated her identity, and the very words and thoughts that were exchanged between me and reporters)."

I think Scooter's problem isn't that he forgot something--if he had told the FBI and grand jury "I don't remember," he would not be indicted--it's that he actually fabricated a story.

While the absence of any personal notes to corroborate his testimony is not proof, it IS something the jury could wonder about. Why wouldn't he have made a note (before, during, or after) about meetings with Judy? Why wouldn't he have made a note that someone (Tim Russert) was reealing classified information? Why wouldn't there be a paper trail of follow-up inquiries once Scooter supposedly heard this information? If Russert had passed on a juicy tidbit, wouldn't Scooter want to verify the information?

Then again, I don't know what types of things he normally would/would not jot down.

Jeff,

you are correct when you say that probably never really happened.
In case you have forgotten the source of that line though:

"The Devil And Daniel Webster"

http://tarlton.law.utexas.edu/lpop/etext/devil/devil.htm

"The defense rests," said Dan'l Webster, and stood there like a mountain. His ears were still ringing with his speech, and he didn't hear any thing else till he heard judge Hathorne say,
"The jury will retire to consider its verdict."

Walter Butler rose in his place and his face had a dark, gay pride on it.

"The jury has considered its verdict," he said, and looked the stranger [[the devil]] full in the eye. "We find for the defendant, Jabez Stone."

With that, the smile left the stranger's face, but Walter Butler did not flinch.

[55]

"Perhaps 'tis not strictly in accordance with the evidence," he said, "but even the damned may salute the eloquence of Mr. Webster."

With that, the long crow of a rooster split the gray morning sky, and judge and jury were gone from the room like a puff of smoke and as if they had never been there."

\\

I think that hopes of Mr Cheney hurting himself on the stand, IF he ever takes it, are stretching. Unlike Mr Libby in the past, he will have full knowledge of the location of the game pieces on the board, and will not be thinking that he has the luxury of people not testifying.

He may even use Hillary's line: "I don't recall." From the famous Rush Limbaugh song. But I expect he will do even better.

((Now all of the above is going along with the assumption in this thread that Mr Libby is guilty of something.))

dbrune, I tend to aqree, it having been a while since I read the extant MSS.; several folks here do that a lot, though, and I defer to their expertise. The forgetfulness seems to peak on four dates, about which certainly we will hear at trial, though the Cline segment of the defense engages the Libby strategy at many intersects. I still like the graymail threat to turn the trial into a media circus; defense may discover more than they anticipated if a representative spectrum of journalists are to testify. It would be interesting to hear Ew's take on that again; but, at this time what I see is defense efforts to maneuver the judge so his trial considers an ecclectic selection of sources of evidence and testimony. That is what defense preparation attempts to do. My comments mostly focused on the broad perspective of Libby's quotidian responsibilities, and I thought I found some synchronousness between the signing statements, which are elaborate and refute over 1,000 statutes, and the four days of blanked memory, or excessively busy events. Some of those may even be as credible as the forged IraqNigerUranium documents, which should provide Fitzgerald room for exploration. Those surprises are all to occur at trial. As Christy has observed, though, and somewhat like the interests of the defense, the pretrial maneuvers from Fitzgerald's perspective are hoped to afford a trial devoid of surprises, rather, confirmatory of charges; though we opine we have seen flaws in some of the alibis Libby has designed so far, pointing at other individuals to whom Libby was answerable, and to a range of other 1x2x6 facilitators and co-leakors. I have to read the book, though, in January, I believe, the one fdl is helping produce on behalf of the author owner of this site.

Right, Jeff [the first affidavit was filed on 11/7, to be exact, the day of the first Section 6(c) hearing, when the government's original Motion of substitutions was simultaneously filed, and denied by the Judge (orally) at the hearing that day (per the 11/13 vacated Opinion)].

Monday's second 6(c)(2) affidavit filing is reinforced by the docketing today of "Government's Supplemental Motion Pursuant To CIPA Section 6(c) For Substitutions In Lieu of Disclosure Of Classified Information" (under seal).

I'm assuming that this is the final round for 6(c) - because presumably after (I believe) four 6(c) hearings, the positions have been clearly laid out and the government has taken its best shot at "going back to the drawing board" since it was given that ruling on 11/7, in an effort to review the 6(a) evidence again more closely and disclose as much as the Intelligence Community feels it possibly can in this case. So I assume today's filing (faxed over to the Court, it appears, from the DOJ's Criminal Division this morning) is the government's best shot at a set of substitutions that will pass muster with Judge Walton. It's possible Libby may already have seen (or heard last Wednesday) the gist of this supplemental motion, but I would expect to see another response from him before the Judge rules on it.

[Clearly the government has been revising its denied Motion before now, because Libby has responded to revisions that weren't actually docketed (as Libby apparently did with the first Motion, actually, too). So for that reason as well, I believe that the government waited to officially file both the new affidavit and the new supplemental Motion, until all outstanding matters that could be addresssed, were addressed. I don't imagine, for one thing, that they were too eager for another flat denial, this time perhaps with prejudice, from the Judge, for a too-hasty and not-yet-best-shot 6(c) refiling...]

pw, I am glad the rescinded MoO the html version of which I linked provided another Waltonism 'back to the drawing boards', matching the commedian judge jibe in the MoO 4 days later which document is the topic of Ew's current diary here. I retrieved the original UPittJurist link there, or, rather, broken link, but it was googlable for the html archive copy. Jurist has a new tickertape post about the new Prodi policy for managing one incident related to international rendition, off topic for the current TNH thread, but maybe one wonders sometimes incidents like that could develop more about some of the debunked paperwork in the Plame matter.

pow wow

Thanks. That sounds roughly right to me, though it's easy for me to imagine that they could go back for another round of substitutions on a limited number of items, even if by and large this round is successful. In his last opinion, Walton seemed to express confidence that the government could get on the right track, which is promising from their point of view; but again, they could succeed overall but still have some discrete things they have to try again on. My impression from looking a little at the Fernandez case in Iran-Contra is that there can be multiple rounds of this stuff - although I remain a little confused by all the appellate action involved in that one, and the interference from the AG and so on.

I assume that we'll hear pretty quickly from Walton, which is what happened last time and which presumably everyone wants in light of the approaching trial date.

EW, Pollyusa had 3 likely useful links for the 4 mystery dates of Libby's absentedmindednessDefense, with source materials accessible from Pollyusa's calendar site.
July 29, 2003 is one day before the Libby forgetfulnessDay; on July 30, 2004 CIA wrote DoJ a letter stating the possibility there was criminal unlawfulness in the outing of Plame. However, rather than a copy of this letter, Pollyusa has posted a copy of a later letter from CIA to Conyers January 30, 2004 which cites the July 30, 2003 letter; the January letter, citing the earlier letter, is available on the House judiciary site there. I would wonder if the 29th was the day a draft circulated in advance of the formal letter on the 30th.

Approximately December 26, 2003 DoJ added 2 investigators to the then nascent leak probe, an intell specialist and the functional equivalent of an IG the Public Integrity person; I know you have mentioned the latter in your writing. Likely you know who the former is, as well. Pollyusa's source is an Allen-Millbank WaPo announcement of these appointments in the first part of a long article summarizing the then fairly quiescent case there.

Also in the end of December 2003 was Comey's appointment of Fitzgerald as Special Prosecutor in a letter dated December 30, 2003 there.

Pollyusa's calendar is there.



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