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November 27, 2006


Paul O'Neil was head of Treasury then, hard to imagine him leaking this or condoning it (might be something in his book), hard for me to imagine anyone else in Treasury motivated to either. I'd be happy to bet that some shady type in the White House would get Judy on the story though, someone in Cheney's office say.

Yep, that's kind of what I'm thinking, Kim. Paul O'Neil is not going to leak this kind of thing.

On principle, I'm against allowing the government to troll through massive databases to find nuggets of potentially incriminating information. But in Judy's case, I would be willing to make an exception. Now that her dirty complicity with the many criminal acts this administration has perpetrated on the American people, I think everything she has ever done- notes, phone calls, emails, EVERYTHING - should be fair game to investigators. What better evidence of conspiracy than a well-documented and long-running pattern of criminal leaks to the same reporter?


insert "has been revealed" after "people" and before the comma.

NSA records would do just fine, but, I guess that's worng now.

What's treasury doing with NSA records? The same thing CIA does.

Any bets on whether Fitzgerald gets an indictment out before the statute of limitations is up?

I'm going with John Bolton.

For those interested in Sibel's piece, look for Part Two on Wednesday - primarily the Turkey connection.

Maybe Fitzgerald could do a FOIA on the the illegal warrentless domestic wiretaps the NSA has been doing? The President himself told us about those taps so it would not be revealing a state secret (4 years late, better late than never). If the State Department can get the NSA wiretaps (see Bolton's unsucessful appointment hearings), then DoJ and the Special Prosecutor should have access to them as well.

Abramoff and Norquist had some odd-ish connections with Muslim groups.
Is it possible the leak to Judy was to protect them?

From scotusblog.com: The [entire] Court order reads: "The application for stay of mandate of the United States Court of Appeals for the Second Circuit pending the filing and disposition of a petition for a writ of certiorari, presented to Justice Ginsburg and by her referred to the Court, is denied."

Mr. Arthur "Pinch" Sulzberger, your effort to run out the clock has failed. Thank you, Supreme Court, for not enabling any further machinations by the complicit owner(s) of the New York Times, in covering up the devious deeds of one Judith Miller, who was, and obviously still is, harbored and protected by those who own that newspaper. This country, and world, has been grievously harmed by the rogue reporting of Judith Miller, and those who enabled it, and her, at the New York Times. It took serious perseverance and diligence to obtain this result from the Supreme Court, on the part of U.S. Attorney Fitzgerald and Assistant U.S. Attorney Debra Riggs Bonamici and others in the Justice Department and in the Solicitor General's office, and I hope the grand jury will now have the time to effectively act on the new information before the statute of limitations runs out (starting the end of this week).

This sense of entitlement that reporters like Miller (and their employers and lawyers) adopt under the mantle of the free press and the public's right to know, when they are in fact hand in glove with the propaganda-dissemination and policy-promotion efforts of government insiders, has got to be exposed for what it is. When their personal agendas [or as in Shenon's case here, perhaps, their careless disregard for the well-being of the general public as a result of their latest confidentially-provided "access" scoop (a la Robert Novak)] interfere with, and substitute for, objective and good faith reporting, journalists should be held to the same standards as the rest of us, and no "First Amendment" shield should exist for them to hide their own complicit behavior behind.

I forgot to say that my guess as to Judy's source is Bolton. Bolton had access the NSA wiretaps and he visited her at least 2 times while she was in jail. Bolton as undersecretary was one of the neocon's men, one who would do the dirties to help realize the necon's vision of a powerful, unrestricted United States. To that end, he thought little of the UN (nobody would notice if the top 10 stories were blown off) and less of international law (international law should never be obeyed even if it was practical in the short run, in the long run it would restrict the U.S. power). Bolton joked that we needed a common enemy to unite us - he picked muslims (but the Chinese are an option in his view point) .

Now why would Bolton, having picked muslims as the uniter of Americans, tip off (via 2 reporters) a couple of muslim charities? I believe that the Saudis, Grover Norquist, Jack Abramoff and a whole host of others are part of the neocon vision of remaking the Middle East. In that sense, tipping the charities so that Norquist and the Saudies were not revealed, was deemed a minor deviation from the neocon vision of the world in December 2001.

I happened to recently read parts of Kevin Phillips' 2004 book on the Bush "Dynasty" and found it full of revelations. It explained linkages between the BCCI banking scandals, which tied in with Iran-Contra, IraqGate, the Saudi's, and the Bush family.

According to Phillips's 2004 book, Bush 43's Treasure Dept had many appointees who were up to their arses in Enron malfeasanceon, energy trading, intel, oil... quite a rat's nest. Given the apparent linkages between Enron malfeasance and Bush 43 Treasury Dept employees, it would probably be more surprising if Judy' HADN'T been tipped off.

America is a commercial culture, so 'selling' protection and legislation seems to come easily. Too bad Bu$hCo are so compromised, dishonest, and cowardly that they sold us off so cheaply.

I'm kind of favorable to readerOf's or lukery's interpretation. That is, I don't think it's Bolton. He's not much of an Arabist (indeed, he's the opposite). But there are plenty in the Bush cabal who are Arabists. IIRC (it's in my last post on this), the leak came directly from the government.

Cheney to Libby to Miller has a track record.
Rove to Norquist to Miller has some appeal too.

I'm apprehensive of the ruling, despite Miller's bad faith reporting. The basis of the AIPAC and this Second Cir case pave the way for going after people like Reisen and Priest and Lichtblau and their sources as well.

There is a lot at stake and opening a pandora's box that is dependent on sound exercise of prosecutorial discretion as the only bastion of protection for whistleblowing reporting has plenty of downsides, particularly when you have people like John Ashcroft and Alberto Gonzales setting policy.


My hope that Fitzgerald could and would bring a criminal racketeering case against the Bush government, specifically the Office of the Vice President, has returned again. With the information gleened from his 2 cases against Miller/NYTimes, multitudes of rats jumping ship, 2 SCOTUS victories on his heels, and what seem to be fair and judicious rulings by Walton, Fitzmas is looking possible. At this rate, even if he loses his current appeal of one of Walton's ruling (can't remember which one), he's likely to hand Libby's ass to him and convene a grand jury to consider crimes committed by Richard Cheney, George W. Bush, Karl Rove and many others.


I appreciate the concern. But this case (at least in visible filings) has a much higher threshold than the AIPAC case. There's no legitimate reason for this to have leaked in this way (particularly not for Miller to have passed on the tip, so Shenon leaked it). And they will, always, need to go before a GJ to get this access. Finally, Fitz is allowing the journalists to redact the numbers to hide unrelated sources.

I'm sure there are many reasons Bolton is a bad guess. There were many reasons Armitage was a bad guess. I stand by my choice!

yo, emptywheel, RICO has a 10 years limitation on prosecution

if the facts of the case can meet 7 criterion points, RICO can be used to prosecute

Doesn't PATRIOT have a RICO aspect to it also? If you reveal an impeding raid on a banned Muslim charity, I bet the courts would see that as "providing material support to a known terrorist organization." Were any of the charities on the State Dept list?

The Muslim charities leak sure is a great Rorschach, isn't it? None of us know what it's all about, except that Judy Miller plays both catcher and pitcher, apparently. (But we knew that about her already, didn't we?)

So who does Judy Miller work for? (Besides the New York Times, of course.) To me, that's the real mystery.

Dunno, Quicksilver, but one of the under-reported aspects of Judy's testimony in the Salah trial is that they asked her if she was Sayanim:

Deutsch concluded his cross examination by asking Miller if she was familiar with the term Sayanim, referring usually to Jews living outside of Israel as foreigners who voluntarily assisted Israeli Intelligence, the Mossad in operations, asking Miller if she has ever acted in this manner and she replied that she had not.

Don't know why she'd be tipping of a Muslim charity in that function though, especially not one with which Salah had ties. All very incestuous.

Somebody needs to explain to Josh & Co that if it becomes known that journalists have an ablosulte legal immunity that journalism will be infiltrated by every crook & spy imaginable.

I don't know if I qualify as "& Co." *g* but I don't think anyone is talking about absolute legal immunity for journalists - apparently DOJ reserves that for the Executive Branch's criminal activities.

I can't speak for Josh or Glenn Greenwald or others who have already spoken for themselves anyway, but my concern is that a huge amount of what we do know, right now, about the many egregious activities undertaken by the Executive Branch (including its legal department) track back directly to someone leaking information that they were not allowed, by DOJ's interpretations, to leak.

All the stories that are now "out" also have had ramifications. The basic legal approach on many of these "shades of grey" issues is to make sure that the most attractive facts underlie the case(s) that gets review by the court(s), in an effort to get general case law that can be very aggressively applied to cases where the facts are nowhere near as attractive. A Salah case is a much more attractive torture case than, for example, an Arar case. The old adage, hard cases make bad law, stems from the fact that in some cases there is a "wanted" result and the actions taken and reasoning used to support that result can and do inevitably come back to bite us as a nation later.

EW -
>>"But here's a question. What do we do about these kinds of leaks?"
IMO, the first thing you do is take a very close, hard look at the true definition of "these kinds of leaks" in a manner similar to that which exists in the intel identities protection act. Close and careful definition.

>>"Do we say the trade-off--absolute press freedom in exchange for spies and terrorists evading the law is the price you pay in a democracy?"

I don't mean this disrespectfully, but I think that is hyperbole. No part of the law of first amendment rights deals in absolutes, with the possible exception of Congressional statements on the floor and there are even a few cases that raise issues on that.

First off, the question pre-supposes facts that generally aren't determined at the stage of going after the reporter's docs, i.e., that the charity or pseudo-charity whose documents are going to be reviewed is already known to be a repository of spies and terrorists. Kind of like how the MCA and enemy combatant review tribunals have been working - hey, we can't let the terrorists have real trials can we?

There is no absolute freedom of the press and never has been. It is, however, a VERY free tradition and one that is being chipped away in a pretty frightening fashion. And the best way to chip is always to toss out the "head down, doing his job" prosecutor who seems synonumous with prudence and use that case as the rabbit.

I'm not necessarily saying good or bad, yeah or nay, but I am saying that it is an overly simplistic approach to give Fitzgerald a white hat, Miller a black one (except when he is using her sterling character for truthfulness in the Salah case) and from that predetermined vantage, back into whether or not the decision made was good or bad. There is a lot more at stake in every case that examines the limits of rights or applications of little used statutes than the case in front of the court. A butterfly's wings in Ethiopia may not cause the tornado in Indiana, but the ripples from cases and case law can and do cause tsunamis.

>>"Perhaps we institute a review process into the grand jury process to weigh the societal benefit of a leak before the prosecutor gets to subpoena source information?

I'm not sure I follow you, but I can't really think of a process and statutory imprimatur that would work for this. The reason we have not had, historically, anything like an official secrets act is because prosecutorial efforts are not independent - they are a part of the Executive Branch. So the same Executive who decides what the want to cover up from the public decides whether or not to go after the journalists.

Some states have AGs who can and do blow off the Gov and can proceed very aggressively, but within the Federal system, we have a pretty different structure vis a vis the Executive Branch and the things that our DOJ has been involved with and condoned will serve for a long long time as the walking, talking example of that.

>>"One thing's for sure. The bad guys are increasingly trading in the currency of information, rather than cash or horses. They're also increasingly hiding behind the fairly established pockets of protection for information exchange. We've effectively given well-connected bad guys a skeleton key to open whatever bank--bank of information--they want to rob. How do we stop that without threatening press freedom?"

Well, I think in large part you have to disempower by more sunshine, not less, on the classifications and government activity front. Well connected bad guys always have had a skeleton key to information - I'm not sure how penalizing the press for making information public or following up on stories that they think will have public interest changes that?

Again, I'm not that certain that this particular case is good, bad, right or wrong or shades of grey. I do feel very wary of it, though, especially in the context of other cases that have been decided recently and the chilling effects on what will be happening now with investigative reporting. We don't really need more stenography and if we aren't willing to defend non-stenography options, even at a pretty high price, then we lose them.

The trades are never this easy, but would I be, for example, willing to trade off protecting Judy Miller from tipping off an investigation into an entity that may OR MAY NOT be guilty of funneling money to terrorists (given, after all, that as a taxpayer I am pretty well funding the opium trade support for terrorists via Afghanistan as it is) in exchange for knowing that the leakers and reporters on the NSA wiretaps, the violations of EU laws, the kidnaps, the torture, the coverups, etc. be allowed to operate with less fear of Executive Branch retribution - yep. I would. Especially in light of an Exec Branch that also claims the right to covertly and militarily round up all those persons in the US involved with that charity as suspected "enemy combatants" and disappear them into military detention forever, with no access to civilian counsel.

Again, some hyperbole, maybe. But read some of the cases and some of what the DOJ lawyers have argued is acceptable (secret laws that the courts and the accused can't see and they have to rely on the DOJ determination that the secret law was broken; tortured confessions that can't be discussed with lawyers or mentioned in court bc - well, how we torture is a secret; statements and evidence that the accused cannot discuss with their own lawyer bc the evidence is classified and the attorney has clearance by the accused does not --even though the evidence is the accused OWN WORDS in response to the questions they were asked by interrogators; etc.)

With those kinds of stakes, yes, I will be the nutcase who says we need to be very careful how much legal aggression against journalists we are willing to support.

Again, not a yeah or nay, but a lot of concern that the overall stakes are being underplayed.

Mary, two quick points.

First off, the question pre-supposes facts that generally aren't determined at the stage of going after the reporter's docs, i.e., that the charity or pseudo-charity whose documents are going to be reviewed is already known to be a repository of spies and terrorists

Um, the spies in question are not those at the charities, per se. The spies of INTEREST in this case are the ones inside government who are sabotaging legitimate investigations, possibly intentionally. But the whole point is--and it is one that has been made in court arguments repeatedly--is this is a grand jury investigation. It's not court testimony. This is the stage where you determine if a crime has been committed.

Well, I think in large part you have to disempower by more sunshine, not less, on the classifications and government activity front.

This ignores the leaks these guys are trading in. How does sunshine help Plame keep her covert identity? How does sunshine help Wen Ho Lee combat the guys using him as a scapegoat? How does sunshine help prevent spies from sabotaging our terror investigations or--in the AIPAC trial--our foreign policy?

And, as Tatel said in the Miller/Cooper case, by preventing these guys from getting malicious and often lying leaks, you're not punishing the public (who is the beneficiary in question, not the journalist), and you're probably only punishing the journalist in ways they deserve, if they're habitual consumers of this stuff.

My biggest point here is that the hyperbole camp cries over and over again for what really amounts to an absolute privilege (because this case and the Plame case are ones that would never fall under shield laws; if you're not arguing for an absolute privilege, than this case and the Plame case should be beyond comment). Yet they're unwilling to come up with some solutions to the ways that these leaks really do present a big risk to our country, from the same guys who you're so worried (rightly) about judicial overstep.

This is not, for me, about Judy in black and Fitz in white (for example, I share Salah's lawyers suspicions about Miller's testimony). It's about recognizing that the bad guys are using reporters privilege as a tool to break the law and ruin people's lives. How is arbitrarily ruining Lee's or Plame's life any less problematic than arbitrarily ruining an innocent Muslim youth's life?

Did you know that Mossad has an official website? There's even an application form (for Sayanim). This is straight from the site: "We encourage excellence and goal orientation: initiative, creativity, resourcefulness and courage. We act with determination but are open to criticism...."

Part 2 of Sibel's piece is up

I learned a new acronym yesterday: ZOG.

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