The Theory of the Two Notebooks

by emptywheel

There's a bit of discussion about the additional notes Judy has supplied to Fitzgerald. And there are some very sound challenges to speculation I made last week on what had happened to make Judy turn over more documents and testify again. (Although I think Jane Hamsher puts those challenges to bed here.) I wanted to use the dead time while Judy is, for all we know, flipping like a burger, to see if I could refine the speculation by looking more closely at the differing versions we've heard of Judy's testimony and notes.

In particular, I'm interested in the possible source, the descriptions of the notes, the descriptions of Judy's action, the descriptions of Plame and Wilson and the descriptions of the implications.

My current theory is that two documents were turned over to Fitzgerald, Judy's notes and some documentation from the NYT.

First, let's look at several versions of the story.

WaPo

New York Times reporter Judith Miller has discovered notes of a conversation she had with Vice President Cheney's chief of staff in June 2003 and has turned them over to the prosecutor investigating whether administration officials illegally leaked the identity of a covert CIA operative to the media, according to two sources familiar with case.

Miller, 57, also has agreed to special counsel Patrick J. Fitzgerald's request that she meet with him Tuesday to answer additional questions as part of his probe, the sources said.

[snip]

It is unclear why Fitzgerald wants to speak with Miller again. Miller turned over some redacted notes to the prosecutor last week, and her attorneys asked her to reexamine others, according to a source close to Miller. She found some that involve discussions she had with Libby about the CIA operative's husband, Bush administration critic Joseph C. Wilson IV, the source said.

Miller attorney Robert S. Bennett declined to comment yesterday.

Fitzgerald has been trying to determine whether any administration official broke the law by leaking the identity of covert CIA operative Valerie Plame to the media in retaliation for her husband's criticism of the administration's justification for war with Iraq.

The WaPo explains that Judy's lawyers wanted her to "reexamine  other" notes. In so doing, she found some relating to an earlier discussion with Libby about Wilson. She has turned them over to Fitzgerald and agreed to "answer additional questions"--although the source who says she will answer additional questions seems to also say, "it is unclear why Fitzgerald wants to speak to Miller again." This information probably comes from one of Judy's lawyers, since the story mentions instructions between Judy and her lawyer. Robert Bennett is described as declining to comment.

This article describes Wilson and Plame curiously. It doesn't name Plame at all until the sixth paragraph, referring to her until then as "the CIA operative." More curiously, it refers to Joe WIlson as a "Bush administration critic" as if that is his sole job description. Sorry, Bennett, that would be "retired  Ambassador and the guy who told Saddam to fuck off to his face."

In its later paragraphs, this article explicitly says the smear-Wilson campaign had extended back to May 2003. It also mentions the INR memo written in early June 2003. It attempts to get a response from Tate, Libby's lawyer, but he offers no comment.

Reuters

A New York Times reporter has given investigators notes from a conversation she had with a top aide to Vice President Dick Cheney weeks earlier than was previously known, suggesting White House involvement started well before the outing of a CIA operative, legal sources said.

Times reporter Judith Miller discovered the notes -- about a June 2003 conversation she had with Cheney's chief of staff, Lewis "Scooter" Libby -- after her testimony before the grand jury last week, the sources said on Friday. She turned the notes over to federal prosecutor Patrick Fitzgerald and is expected to meet him again next Tuesday, the sources said.

Miller's notes could help Fitzgerald establish that Libby had started talking to reporters about CIA operative Valerie Plame and her diplomat husband, Joseph Wilson, weeks before Wilson publicly criticized the administration's Iraq policy in a Times opinion piece, the sources said.

Reuters also describes Judy as having turned her own notes over, although it makes no mention of the intervention of her lawyers. Nor does it say she'll answer questions at todays meeting; it says simply they will meet. The sources here are described as legal sources. One is almost certainly a Judy lawyer. The other, given the details about the implications of the new notes, may be a Fitzgerald source.

This artice twice notes the importance of the new notes, saying in the first paragraph that the White House was involved before Plame was outed, then further detailing in the third paragraph that Libby was talking to reporters (note the plural here) before Wilson publicly criticized the Iraq policy.

And Reuters seems to remember that Joe Wilson's first job description is not Administration critic. Rather, he is a diplomat first who criticized the Administration.

NYT

He has asked to meet on Tuesday with Judith Miller, a reporter for The New York Times who, after spending 85 days in jail, testified last week to the grand jury about her conversations with I. Lewis Libby, Vice President Dick Cheney's chief of staff.

The meeting is expected to focus on newly discovered notes compiled by Ms. Miller that refer to a conversation she had with Mr. Libby on June 25, 2003, according to a lawyer in the case who did not want to be named because Mr. Fitzgerald has cautioned against discussing the case. Until now, the only conversations known to have occurred between Ms. Miller and Mr. Libby were on July 8 and 12, 2003.

The notes refer to Joseph C. Wilson IV, a former ambassador to Gabon. An Op-Ed article that he wrote for The Times, on July 6, 2003, which was critical of the administration's Iraq policy, started the events that led to the disclosure of the identity of his wife, Valerie Wilson, a C.I.A. operative, and subsequently to Mr. Fitzgerald's inquiry.

With a correction

An article on Saturday about the status of the investigation into the disclosure of a C.I.A. operative's identity misstated the date of a conversation between the New York Times reporter Judith Miller and I. Lewis Libby, Vice President Dick Cheney's chief of staff. It took place on June 23, 2003, not June 25.

This one seems to support Jane Hamsher's point--if the NYT is only admitting now that there were earlier conversations between Libby and Judy, then either it or Judy was not entirely forthcoming beforehand. This is a new story we're getting.

I'm curious about the way the NYT describes these notes: newly discovered notes compiled by Ms. Miller. Sounds like she's cherry picking. Maybe Fitz is still concentrating on the Plame leak and allowing her to redact information on Iraqi acquisition of uranium.

The date change is significant. According to Wilson, the UK's Independent ran a story coming close to naming him on June 22. (I'm still trying ot get a copy of that story.) Was Libby out shopping this story around June 21?

Now this article doesn't describe who is doing the leaking--it could come from a Judy lawyer, from a Fitzgerald lawyer, or from a NYT lawyer or manager. But look at the way Wilson is described. A former ambassador to Gabon. The further we get from Judy's sources on this story, the less Wilson appears as a critic and the more as the diplomat he is.

Newsweek

Rove's lawyer, tells NEWSWEEK that, in his last conversations with Fitzgerald, the prosecutor assured Luskin "he has not made any decisions." But lawyers close to the case, who asked not to be identified because it's ongoing, say Fitzgerald appears to be focusing in part on discrepancies in testimony between Rove and Time reporter Matt Cooper about their conversation of July 11, 2003.

[snip]

Rove told him the wife of White House critic Joseph Wilson worked at the "agency" on WMD issues

[snip]

Fitzgerald has also summoned New York Times reporter Judith Miller back for questioning this week: a notebook was discovered in the paper's Washington bureau, reflecting a late June 2003 conversation with Vice President Dick Cheney's chief of staff, Lewis (Scooter) Libby, about Wilson and his trip to Africa, says one of the lawyers. The notebook may also be significant because Wilson's identity was not yet public. A lawyer for the Times declined to comment.

Finally, Newsweek, the story that has everyone scratching their head. I included the Rove stuff that is the main jist of the story to show how closely Luskin's description of Wilson matches (presumably) Bennett's--he's a critic, not a diplomat. We'll be hearing a lot about Wilson's extensive career as a White House critic in the coming weeks, I'd wager.

And to get to source. This story relies on "lawyers close to the case," which almost certainly includes Luskin (who wouldn't be left out of a leak-fest if he could help it). Probably a lawyer from Fitz' shop. But then, down there at the end, the NYT's lawyer. Not Judy's lawyer. The NYT's lawyer.

At this point, that detail is one of the most compelling reasons I think there are two notebooks. Isikoff, presumably, has a better understanding of what this notebook is than he's letting on. He certainly knows who his source for information on it is (who may or may not be the NYT lawyer who refuses to comment). So why, if this were Judy's notebook, would Isikoff seek comment from the NYT lawyers?

I've made several other arguments why I think this notebook is different than Judy's notes. For starters, Isikoff provides a mix of vague and incredibly detailed information on it. It was discovered, he tells us, in the paper's Washington bureau. But we know that Judy lost her desk there a year and a half ago.

In January, the bureau officially deprived Miller of her desk. Although this was ostensibly done to make space, according to denizens of the bureau it had an intentional symbolic value, too. “It gave the bureau a way to move her out without saying it was moving her out,” says a reporter.

So it was not, presumably, discovered in Judy's desk. If I were a journalist fighting hard to keep my sources confidential, I wouldn't store the records of those sources somewhere where I didn't own the key.
I also think Isikoff uses the passive here very deliberately. Isikoff may have his limitations as a journalist, but basic grammar is not one of them. A professional writer knows the weakness (and the strength) of the passive construction quite well--it obscures who is completing an action. If Isikoff's source for this news is a NYT lawyer (as it appears), then I can see the passive construction to be something very important to the source.

The NYT is trying very hard to hide their complicity and possible implication in this conspiracy. Which is why, I think, Isikoff uses the passive here.

So what? Why does it matter if there are Judy notes and NYT notes being handed to Fitz?

For starters, it suggests the NYT may be ready to jettison their beloved martyr. If she has gotten them into some legal hot water, their willingness to hand over additional materials suggests they're now trying to protect themselves, perhaps at Judy's cost.

But it also suggests a possible scenario whereby Judy came to discover some notes she forgot about. It may be that Fitzgerald caught her in a perjury trap (or she just perjured herself believing the subpoena's terms protected her). But the involvement of the NYT in this directly (if that's what it is) could suggest Fitzgerald has demonstrated to Pinch that his best interests lay in providing materials from June (and note--if this notebook references story assignments without source, this bypasses any First Amendment issue).

In which case, Judy may now be in a similar situation as Cooper was, where it was futile to hide her materials any longer because those provided by her employer already exposed the bulk of what she might have hidden.

Comments

[manyoso]

emptywheel, I contacted that Independent article author and tried to get him to tell me the name of the ambassador when it came out. He refused, but he put me on the trail... a few days later I contacted someone else who _did_ give me his name. I published Wilson's name and the next day he wrote his op-ed for the NY Times, so Wilson was right... his name was about to come out. Ask swopa.

[Cynthia]

These analyses are mind-boggling (in a good way, of course). However, the issue that has impressed me in the last couple of months is the amount of information traded among members of the press that never gets to the common folk.

I guess I'm slow (gullible, trusting, etc.) that way, but I go back to Lawrence O'Donnell's piece on Huffington Post on 7/2/05. To wit:

"I revealed in yesterday's taping of the McLaughlin Group that Time magazine's emails will reveal that Karl Rove was Matt Cooper's source. I have known this for months but didn't want to say it at a time that would risk me getting dragged into the grand jury."

How many members of the press "knew" and why didn't they publish this information? What do they "know" now that we don't know?

[emptywheel]

Cynthia,

I'll warrant the people up in arms over at the NYT know Judy never published what she was talking to Libby about. They probably have some details about her status at the time, too.

[KdmFromPhila]

Nice work. If you decide to quit 'your day job,' you could become a special prosecutor.

[Roddy]

emptywheel,

Have you considered/discussed this scenario:

The NYTimes Washinton bureau finds the notebook in DC and turns it over to Fitz. Fitz then decides he wants to have another powwow with our beloved St. Judy of the First Amendment about the previously unknown Scooter in June coversation. Voila, the notes of the coversation are miraculously "discovered" by our dear Saint- probably with more than a little prodding from Fitz.

[emptywheel]

Roddy,

Yeah, I think that's possible. I just think there's probably a reason WHY the NYT went looking. Perhaps they, too, were encouraged by their lawyer to go back and look again?

[kim]

Is this a case of Judy's friends at the Times protecting her (misplacing their memory of the notebook) or Judy's enemies at the Times setting her up (waitng until she's testified before they remember their notes)?

If the Times went looking would this be because Judy discussed her June Libby conversation(s?) in her GJ testimony and (then) with Times lawyers?

[kim]

Is this a case of Judy's friends at the Times protecting her (misplacing their memory of the notebook) or Judy's enemies at the Times setting her up (waitng until she's testified before they remember their notes)?

If the Times went looking would this be because Judy discussed her June Libby conversation(s?) in her GJ testimony and (then) with Times lawyers?

[Sara]

EW -- Wilson uses "The Independent" atricle citation in his book, p.332.

The Context is this. First he discusses Condi Rice's June 8 appearance on Meet the Press where she introduces the "in the bowels of the agendy" -- but "not in my circles" construction. Wilson was upset that Rice was not telling the truth, contacted someone in the administration -- and someone in the administration suggested he would have to write the story himself. He then contacted David Shipley at NYT Editorial side, and arranged for his article. Wilson observes that in the next two weeks, his name openly circulated within the press.

Then -- the June 22nd Independent.

"I Learned that on Sunday, June 22, the London Newspaper "The Independent" blaired a headline across the top of the front page, just below a banner advertising Hollywood Madam Hedi Fleiss's new book, that read "Retired American Diplomat accuses British Ministers of being Liars." I knew than that the story was spinning out of control and that I had no choice but to write it myself."

It was also about this time that Clifford May's badly reported material on Wilson began to emerge -- I don't have a specific date or reference.

I also don't have a timeline on the Birtish reporting in the BBC and the Guardian and elsewhere that led up to the suicide of David Kelly, who was an apparent close source to Miller, and with whom she was in E-Mail communication on a regular basis.

But what I do see here, beginning with the Condi quote about bowels on MTP is an effort to force Wilson to surface --- maybe so they could get on with the real smear. It should also be noted that Condi used the term "the agency" -- and not what would be more true to Wilson himself, the State Department. On June 8 was she already focused in on the use that was to be made of Valerie?

I must admit that close reading of this give and take can be amusing. Condi purt Valerie in the "bowels" -- and in his book, Wilson comes back with the front page geographical relationship between a Hollywood whore's advertisement and a misleading headline. They may well have been sparring as early as June 8th. Anyhow -- is this evidence that by June 8th, Condi had already adopted the Conspiracy as her own?

According to Wilson -- David Kelly committed suicide four days after Novak's article appeared -- Kelly had been a BBC source for reports the British Government had exaggerated the Saddam threat. Four days after that, David Corn published his seminal Nation article suggesting that whoever leaked Plame's identity could well be subject to charges under the Intelligence Identities Protection Act of 1982. And that act required George Tenet to call for a preliminary investigation at CIA, and make a DOJ referal if appropriate. That changed the dynamics -- both for Wilson, and also within the White House.

[emptywheel]

Yes, Sara, that's why Judy's plea bargaining, if that's what it is, is so dangerous for BushCo.

Their arguments before were that Wilson was just a nepotist who didn't like Bush. They're the whistleblowers, remember, that this guy on a boondoggle was undermining intelligence. But that only works so long as their not attacking Wilson before they learn of Plame's identity. We're now in a hunt for who leaked Wilson's identity, not Plames.

Not that his identity was so secret. The second Kristof column makes it pretty clear. But I'm ALMOST to the point where I can prove they knew of his identity before he had become identifiable publicly (that is, before the Independent, et al). And when you prove that, then you prove they knew of his identity via intelligence channels. Which would in turn prove they knew of him--and his refutation of the Niger intelligence--before the SOTU.

[kid oakland]

Nice post, I've been linking k/o readers your way for the last couple weeks.

Question, I've been writing vis a vis a the two interviews. At the time, in 2004 it seemed, because Cheney, and then Bush, "chatted" separately, and not "under oath," to the Special Prosecutor that it was a non-story. Not that big a deal.

But what if there are indictments that touch their offices, their staffs? Especially if what Bush or Cheney, or both, said in those interviews differs from the facts the special prosecutor establishes? I'm especially interested in the sequence....apparently Cheney, then Bush.

If Cheney "tilted" the facts...and then told Bush his "tilt" in private...and Bush then did the same...that might spell a world of trouble for the executive branch if Fitzegerald comes out with a different story.

Lots of ifs.....I know. But intrigueing.

[antiaristo]

Is this helpful?

Ministers knew war papers were forged, says diplomat
US official who identified documents incriminating Iraq as fakes says Britain must have been aware of findings
By Andrew Buncombe in Washington and Raymond Whitaker in London
29 June 2003

A high-ranking American official who investigated claims for the CIA that Iraq was seeking uranium to restart its nuclear programme last night accused Britain and the US of deliberately ignoring his findings to make the case for war against Saddam Hussein.

The retired US ambassador said it was all but impossible that British intelligence had not received his report - drawn up by the CIA - which revealed that documents, purporting to show a deal between Iraq and the west African state of Niger, were forgeries. When he saw similar claims in Britain's dossier on Iraq last September, he even went as far as telling CIA officials that they needed to alert their British counterparts to his investigation.

The allegation will add to the suspicions of opponents to the war that last week's row between the BBC and Tony Blair's director of communications Alastair Campbell was a sideshow to draw attention away from more serious questions about the justification for the war.

The comments of the former US diplomat appear to be at odds with those of the Foreign Secretary, Jack Straw. Appearing before a parliamentary committee last week, Mr Straw said the British intelligence community had not known of the forged documents' existence "at the time when [the September dossier] was put together".

But in his first interview on the issue, the former US diplomat told The Independent on Sunday: "It is hard for me to fathom, that as close as we are and [while] preparing for a war based on [claims about] weapons of mass destruction, that we did not share intelligence of this nature."

Asked if he felt his findings had been ignored for political reasons, he added: "It's an easy conclusion to draw." Though the official's identity is well-known in Washington - he was on the National Security Council under President Clinton - he asked that his name be withheld at this stage.

During last week's hearings by the Foreign Affairs Committee, MPs cited repeated reports that the forged documents - a letter on which the signature of Niger's president had been faked, and another carrying the signature of a man who had not held office in the country since the 1980s - had originally reached the CIA via British intelligence.

Mr Straw not only denied that the forged documents came from British sources, but said Britain's allegations about Iraq's quest for uranium in Africa came from "quite separate sources". He said he would give further details of these sources for the uranium allegation in a closed session on Friday, during which he was fiercely cross-questioned by Sir John Stanley, the committee's chief sceptic. After hearing what the Foreign Secretary had to say, the Tory MP is reported to have told Mr Straw he did not believe him.

The testimony of the former US diplomat further undermines the claims of both the British and US governments that Saddam had developed, or was developing, weapons of mass destruction.

The Niger connection became one of the most important and most controversial elements in the build-up to war, and both Britain and the US used it to claim that Iraq was "reconstituting" its nuclear programme. It later emerged that the report was based on forged letters obtained by Italian intelligence from an African diplomat. The Italians were said to have passed the letters to their British counterparts, from where they reached the CIA.

When the International Atomic Energy Agency (IAEA) finally had the opportunity to inspect the documents, nearly a year later, they were dismissed as fakes in less than a day. Neither the US nor Britain ever gave the IAEA any other information to back up their allegations on Iraq's uranium-buying activities, despite the "separate sources" cited by Mr Straw.

In February 2002, the former diplomat - who had served as an ambassador in Africa - was approached by the CIA to carry out a "discreet" task: to investigate if it was possible that Iraq was buying uranium from Niger. He said the CIA had been asked to find out in a direct request from the office of the Vice-President, Dick Cheney.

During eight days in Niger he discovered it was impossible for Iraq to have been buying the quantities of uranium alleged. "My report was very unequivocal," he said. He also learnt that the signatures of officials vital to any transaction were missing from the documents.

On his return he was debriefed by the CIA. One senior CIA official has told reporters the agency's findings were distributed to the Defence Intelligence Agency, the Joint Chiefs of Staff, the Justice Department, the FBI and the office of the Vice President on the same day in early March.

Six months later the former diplomat read in a newspaper that Britain had issued a dossier claiming Iraq was seeking to buy uranium in Africa. He contacted officials at CIA headquarters and said they needed to clarify whether the British were referring to Niger. If so, the record needed to be corrected. He heard nothing, and in January President Bush said in his State of the Union speech that the "British Government has learned that Saddam Hussein recently sought significant quantities of uranium in Africa".

The ex-diplomat says he is outraged by the way evidence gathered by the intelligence community was selectively used in Washington to support pre-determined policies and bolster a case for war.

[DrBB]

In case you haven't seen it, Waas has a new bit out--reporting that Libby did not disclose the June meetings with Judy to the Grand Jury.

[DrBB]

Speaking of sources, Waas credits "sources with firsthand knowledge of his sworn testimony." I.e., Fitzgerald. Fun speculation: why's he want to telegraph this to Libby? Is he looking for leverage to flip Scooter? Flip him on who? Or what?

And why did he wait to leak this (if he did) until after his talk with Judy?

Gosh this is fun.

[OtisIsHungry]

"The NYT is trying very hard to hide their complicity and possible implication in this conspiracy." YESS!
As long Judy was willing to go to jail, NYT said the notes belong to the reporter so they couldn't turn them over like TIME. That was also a way to protect from exposing evidence of their complicity w/Judy in whatever she was doing. Now that she's cooperating, (and NYT cannot claim any more privileged interest in their reporter's notes if she's come off that privilege claim), they have to turn them all over. I think once Judy started cooperating, the NYT started cooperating too(IF they weren't already cooperating before)and at their lawyers' command they are just starting to clean out their closets and desks. By the time the lawyers review what is produced and discuss it w/Fitz, before we hear about it, it takes a few days. I don't think there's anything significant in the timing of the new notes in the time since Judy's release.

But, it wouldn't surprise me if there wasn't some sealed agreement or at least some memo of understanding w/Fitz protecting the NYT at this point too.The NYT is totally and completely wrapped up in conflict here, not just the conflict between their legal posture and their posture as journalists, but also between their legal position and Judy's. If she's got a deal, they've got some kind of a deal, even if it is just a letter from Fitz saying that they are just records custodians and not subjects nor targets and have no 5th amendment privlege to withhold the any notes now.

[DrBB]

Corrected link. Sigh.

[Claudia]

Oh no! The aspens are turning! The aspens are turning! And they are turning *independently*!

[emptywheel]

antiaristo

Yes, that's quite interesting.

And thanks for the head's up, DrBB. I'm most curious by the timing. Waas says Fitz just learned about this earlier meeting. But he says he's wrapping up. Seems to me if he just discovered of an earlier meeting, then he might need a little more time.

But then, maybe not.

[Swopa]

I published Wilson's name and the next day he wrote his op-ed for the NY Times, so Wilson was right... his name was about to come out. Ask swopa.

Yep, manyoso is right -- I remember that blog post.

Then again, maybe that means Fitzgerald should have a chat with him. ;-)

[windansea]

Joe Wilson's speech

A month before Robert Novak wrote his column supposedly outing Valerie Plame, Joseph Wilson gave a speech in which he talks in the third person about a person who is obviously himself, allows Valerie Plame to be identified as his wife, and discloses his intense opposition to the war in Iraq, as well as his anti-Israel sentiments. He makes clear that he is the source of the Kristoff/Pincus leaks about his mission. He even says that “this thing has legs,” that it will take two or three months, but it has legs – implying, perhaps, that he had already been working with the Kerry campaign to make this issue big – attacking the President’s credibility on the war.
http://www.epic-usa.org/Default.aspx?tabid=68&showlogin=1

[Sara]

Windansee -- you make the mistake of not understanding the nature of Cover -- particularly Non Official Cover. A successful NOC llives their cover, and in Valerie's case she was a new mom with twins, and a professional energy consultant. Of course she would attend meetings with her Husband, She was Mrs Joe Wilson and with her husband she was raising kids and working part time. Cover is that you seem to be as you present yourself --

I see nothing in everything available about Joe Wilson to suggest he is anti-Sematic, his first wife was Jewish, and his children (another set of twins) were raised as Jews. His book does contain a strong indictment of the neo-Con's, particularly those such as Richard Perle who work for the Likud party. It is quite a stretch to mistake the two.

[windansea]

"Their arguments before were that Wilson was just a nepotist who didn't like Bush. They're the whistleblowers, remember, that this guy on a boondoggle was undermining intelligence. But that only works so long as their not attacking Wilson before they learn of Plame's identity. We're now in a hunt for who leaked Wilson's identity, not Plames." from upthread

my point is that he outed himself in the EPIC speech June 14...up thread somebody wrote that we are now trying to find out who leaked Wilson.

And the Epic website says "he is married to the former Valerie Plame....her NOC name right??

this speech was given June 14, 2003... a month before Novak article

[Kenneth Fair]

Sara said:

It was also about this time that Clifford May's badly reported material on Wilson began to emerge -- I don't have a specific date or reference.

How exactly did Cliff May get this information? Who was circulating it to him? It's clear the neo-cons went to their favored sources - Novak, Miller, the National Review. Has May been subpoenaed?