A Tale of Two Conspiracies

by emptywheel

The NYT has a story detailing the evidence that will be used to prove that Jose Padilla engaged in a conspiracy to commit terrorism. From its description, the evidence against Padilla is very very thin. The NYT sort of evades the real issue when discussing the substantive evidence against Padilla:

His criminal trial, scheduled to begin late this month, will feature none of the initial claims about violent plotting with Al Qaeda that the government cited as justification for detaining Mr. Padilla without formal charges for three and a half years. Those claims came from the government’s overseas interrogations of terrorism suspects, like Abu Zubaydah, which, the government said, Mr. Padilla corroborated, in part, during his own questioning in a military brig in South Carolina.

But, constrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during such interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy.

The word the NYT is too delicate to use, of course, is T-O-R-T-U-R-E (it does use the euphemism, "coercion"). Evidence collected using torture (either that of Abu Zubaydah, whom several accounts describe being waterboarded and beaten, or Padilla, whom accounts describe as being driven crazy with his treatment) is not admissible in a civilian court case and so, with SCOTUS preparing to rule that the government couldn't try Padilla in a military court, the government had to throw out its charges against Padilla.

That leaves a whole slew of wiretapped conversations as the primary evidence against Padilla. Yet even there, the evidence is very thin. Of hundreds of taped conversations, only 21 mention Padilla; he speaks on only seven of them. The three most ambiguous conversations the NYT reports speak of  impending events.

In the first, Mr. Hassoun asked, “You’re ready, right?” and Mr. Padilla said, “God willing, brother, it’s going to happen soon.” That was the summer of 1997, a year before Mr. Padilla left South Florida for Egypt.

In the second, Mr. Padilla told Mr. Hassoun, during a 1999 conversation from Egypt, that he had asked his ex-wife in the United States to arrange for him to receive an army jacket, a book bag and a sleeping bag, supplies that he had requested because “there was a rumor here that the door was open somewhere.” In the third, Mr. Padilla told Mr. Hassoun in April 2000, that he would need a recommendation to “connect me with the good brothers, with the right faith” if he were to travel to Yemen.

And the rest seem to describe the spiritual journey that led him to get involved with Islamic fundamentalists.

Otherwise, the evidence seems to include a Gitmo detainee who implicated Padilla--under torture, he says.

“Binyam was told all along that his job was to be a witness against Padilla, Abu Zubaydah and Khaled Sheikh Mohammed,” Mr. Stafford Smith said, adding that his client “has no conscious knowledge that he ever met” Mr. Padilla.

And, two defendants named in connection with Sheikh Abdel Rahman in the 1990s (discovered while following the rules of FISA, I might add)--one of whom has never met Jose Padilla.

In the early 1990s, Sheikh Rahman’s telephone was tapped, and Mr. Hassoun and Dr. Jayyousi, a Jordanian-born American citizen who holds a doctorate in civil engineering, came to the government’s attention through phone calls to or from his line. Then the government, under the Foreign Intelligence Surveillance Act, began to eavesdrop on them, which eventually pulled Mr. Padilla into their net, too.

The government presents the three defendants as “joined at the hip,” as one prosecutor put it in a hearing last summer. But Judge Marcia G. Cooke of Federal District Court, noting that Mr. Padilla was appended to a case well under way, asked the government, “If they are so joined at the hip, why is Mr. Padilla so late to the dance?”

Dr. Jayyousi, a former school system administrator in both Detroit and Washington, D.C., never met Mr. Padilla, his lawyer, William Swor, said.

It is Mr. Hassoun, the government said, who recruited Mr. Padilla. But both Mr. Hassoun’s and Mr. Padilla’s lawyers deny that Mr. Padilla was recruited.

In other words, two of the three people with whom Padilla has been charged of conspiring claim to have never met him.

On the other hand, we have Scooter Libby. There is no doubt that he has met--and worked with--Dick Cheney and Karl Rove. Apparently under the influence of no coercion, Scooter Libby has admitted that Dick Cheney ordered him to leak something on July 8, 2003. According to a witness, he leaked Valerie Plame's identity on that day. Apparently under the influence of no coercion, Karl Rove testified that he had a conversation with Libby about the upcoming publication of an article about Valerie Plame.

On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White House (“Official A”) who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson’s wife was discussed as a CIA employee involved in Wilson’s trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson’s wife.

Shortly after this conversation, Valerie Plame's identity was exposed to the world. Without use of torture, the government appears to have uncovered much more evidence of a conspiracy to out Plame's identity than they have against Padilla.

Don't get me wrong--I am not begrudging Scooter Libby his due process. Nor am I complaining about the burden of proof that prevented Libby, Cheney, and Rove from being indicted on conspiracy charges.I am not doubting that Padilla had some ties with Islamic extremists (though, I'd remind of CheneyCo's fondness for MEK, a terrorist group in its own right).

But I think the contrast is stark. We are a country that claims to believe in the rule of law. But a rich white man like Scooter Libby has been charged only with perjury--and his co-conspirators have not been charged at all. While a poor Latino Muslim has been held incommunicado for many years and charged for participating in a conspiracy with men he has never met.

As we begin to watch how our court system treats the privileged among us in the upcoming weeks, it is worthwhile to recognize that not all American citizens are receiving such treatment.

Comments

[freepatriot]

hey jodi, did you understand that one ???

Karl Rove testified that he had a conversation with Libby about the upcoming publication of an article about Valerie Plame.

since you insist that you are too stupid to understand all of this evidence, I'll spell it out for you

scooter claims that he "learned again, as if it were new information" that Valerie Plame was a NOC Agent by reading novakula's column

and KKKarl rove testified that kkkarl TOLD SCOOTER about the upcoming novakula article BEFORE it was published

still think this evidence is so fucking complicated ???

kkkarl told scooter about the content of the article before it was published, and scooter claims he totally forgot his conversation with kkkarl, and learned something new by reading novakula's article

and kkkarl's conversation with scooter was one of SEVEN FUCKING CONVERSATIONS about Valerie Plame that scooter participated in BEFORE the novacula conversation was published

still believe the evidence is "TOO CONFUSING" for a jury to understand ???

unless we can find 12 people with congnative dissonance as strong as you practice, there ain't gonna be any doubt that scooter is guilty

so, are you still confused ???

[Mary]

Keep in mind that the Zubaydah and Binyam torture testimony has already, in a very real sense, been allowed by the court and been allowed into the court of public opinion.

Allowed by the court in the sense that the warrants for Padilla were based on torture and his lawyers' protests were dismissed, opening the door pretty wide already.

In addition, the court has allowed prosecutors to publically deny all of the assertions made,

In previous filings, the government decried the "absurdity of Padilla's assertion" that he was abused, noting that the government was "conscientious enough to tend to his toothache."

http://www.washingtonpost.com/wp-dyn/content/article/2006/12/13/AR2006121302399.html

The court has also been encouraged to have no interest whatsoever in the Comey press conf (subject of a very good op piece by Scott Turrow)... http://www.cnn.com/2004/LAW/06/01/comey.padilla.transcript/

...where he made all the assertions to the public of dirty bombs and plots.

And where he also reassured the American public that the years of blackhole dentention interrogation of an American citizen were all going peachy, no fuzz, just peach.

QUESTION: Just as a follow-up, since he was under military control, was Padilla handled under the Geneva Convention or was there a whole separate layer of techniques and methods used, a la in Afghanistan and in Iraq, on Padilla to get the information: stress and duress or whatever things?
COMEY: The question about Geneva Conventions you'd have to ask the Department of Defense. I know that he was not mistreated. This interrogation was conducted by the FBI, working with the Defense Intelligence Agency. I have great confidence that those folks did it the right way.

This presser was in June, after the May report that is discussed in the WaPo story. And it never really pulls in the facts that Zubaydah is nuts and was tortured - which were known. It skips over the "not so important after all" info that was known too. And I'm pretty sure it never mentions Zubaydah's revelations that Padilla thought he could create nuclear component material by swinging a bucket around. And in all of the extensive background, Morroco, Binyam and scalpels to the testicles aren't much mentioned.

http://en.wikipedia.org/wiki/Binyam_Mohammed

Although I'm not sure that the word testicles could be used when Ashcroft was AG.

Since even the tortured guys all say, too, that Padilla never became "al-Qaeda" it's a bit of an interesting puzzle, figuring out just who the so-called "enemy combatants" who aren't a member of the enemy and aren't engaged in combat, include.

The whole thing is a farce and that's a sad situation. He probably is, IMO, some kind of a bad guy. DOJ didn't have to rape Justice behind the drapes to deal with him.

When Comey says, We'll figure out down the road what we do with Jose Padilla. he might just as well have been with the Mafia, "figuring out" what to do with some guy they picked "later." Kind of like "where do we throw away the empties."

[lemond54]

Bingo, EW. The great irony in all of this is, who has succeeded more than anyone else in the GWOT? Patrick Fitzgerald. He got the blind sheikh and a few others behind bars, fair and square. If he, rather than Cheney's office, had been in charge of the Padilla case, I like to believe that Padilla would have received better treatment by the Feds. There's another interesting parallel in these two cases: Mark Corallo was the spokesperson for Ashcroft when Padilla was first apprehended and Corallo's the spokesperson for Rove. Oh what a tangled web. . .

[William Ockham]

I really like this comparision for a couple of reasons. First, it leads to the question of who did more damage to our country, Padilla or Libby? Second, if the next administration decides to apply the current administration's theory of executive power, what's to stop them from holding Karl Rove or Dick Cheney in a military brig for three years (besides Cheney's health)?

[smiley]

lemond54: If [Pat Fitzgerald], rather than Cheney's office, had been in charge of the Padilla case, I like to believe that Padilla would have received better treatment by the feds.

Right, because the evidence doesn't support a case against Padilla. Fitz is smart enough not to charge when he knows ahead of time that he can't convict. So, if you agree that "no charges filed, suspect released" = "better treatment," I think you're absolutely right.

See, this is the problem with testimony obtained via torture- the victim has a huge incentive to just make shit up, in order to get the torture to stop.

12 days...

[k2]

Hi. Longtime lurker, infrequent commenter here. Freepatriot, while I agree with much of what you are saying, I have 1 little nit to pick. I believe Irving (scooter) Libby claims that when he talked to >Russert< he "learned again, as if it were new information" that VPW worked for CIA. I may be misremembering - it may have been the Time reporter whose name escapes me at the moment. It definitely was a conversation, and before the Novack column came out.

Otherwise, carry on.

[Sne]

'According to a witness'???????????

'would be writing a story about Wilson’s wife.'

It's not Scooter, Roves or the VPs job to run around saying you can't write about a wife. Official A informed Rove and libby that they were obligated to tell CNN they could not write the story?

Plame sponsored the trip as a CIA operations officer and she is Wilson's wife, so, as a wife, did she make a mistake in planning the trip or as a CIA employee paying CIA contractor money to a husband?

Maybe Official A did not explain she was going on the news as a CIA operations officer, paramilitarily trained. Plame is just Wilson's wife.

[pow wow]

How true, EW. Also now apparently par for the course is obliging and deferential media coverage and its forgiving characterizations of said privileged defendants by their fellow elites in the media. In that regard:

As of today, people who are paid to practice journalism no longer have any excuse for continuing to "report" that the grand jury investigation surrounding the outing of Valerie Plame had only to do with which individual or individuals relayed her job information to partisan columnist Robert Novak. To quote the government, whom I trust the media can comfortably rely upon to know the extent of their own investigation, from a new filing today hosted by cboldt at noeasyanswer.blogspot.com (emphasis added):

"The government is entitled to demonstrate through all of the questions asked of defendant that the scope of the grand jury investigation included: (a) identifying all individuals involved in leaking information concerning Ms. Wilson's employment to any reporters; (b) determining the circumstances under which information regarding Ms. Wilson's employment was learned and leaked by such individuals; and (c) determining whether false information was provided to the FBI or the grand jury."

Notably, as this government filing (which supports their effort to enter the whole of Libby's grand jury testimony transcripts into evidence) points out, it will be a part of Scooter Libby's defense at trial to try to mischaracterize the purpose of the grand jury investigation otherwise. To wit (emphasis added):

"Moreover, the defense has indicated that it intends to contest the materiality of the charged false declarations by arguing that the focus of the grand jury's investigation was the leak of information regarding Valerie Wilson's employment to Robert Novak, rather than leaks to other reporters (or that the defendant believed the scope of the investigation to be so limited), and that defendant's testimony could not have been material given that the grand jury had identified the individuals who leaked to Novak prior to defendant's grand jury appearance (or that defendant believed that such was the case)."

As a result, it is now apparent that assertions such as this one made in a January 1 article by Matt Apuzzo of the Associated Press (emphasis added):

"Jurors likely won't hear much about the leak itself because the original source, former Deputy Secretary of State Richard Armitage, has already confirmed his role and Libby is not charged with the leak."

are doing far more to serve the interests of Scooter Libby's defense than they are to serve and inform the general public about the underlying facts and scope of this investigation and prosecution.

Likewise, the Associated Press's co-filed motion with the Dow Jones Company on 12/20/06 falls into the same category of biased description, due to its similarly inaccurate and misleading assertion about the scope and purpose of the grand jury investigation. The rationale offered by Attorneys Theodore Boutrous, Jr. and Thomas Dupree, Jr. for suddenly filing that motion to unseal two weeks ago (in spite of the obviously intense pre-trial preparations and preoccupation of the government respondents) seems to be simply that months ago Karl Rove made an unsupported public assertion about his status, and Richard Armitage made a similarly unsupported public assertion about his July 8th role (which conflicted in significant respects with the public assertions made by Robert Novak about their July 8th interview/meeting). And because the AP and Dow Jones have decided that the grand jury investigation was about ...the leak of information regarding Valerie Wilson's employment to Robert Novak... and only about leak(s) to Novak, they have taken it upon themselves to declare the grand jury investigation concluded, completed, and moot, as a result of unsupported, general and undetailed, public assertions made months ago by three witnesses with perhaps the least credibility in this affair. That AP/Dow Jones motion is a (hostile, in my opinion) fishing expedition about the investigation. Someone really wants to know where things stand, and can't think of any other way to penetrate the government's silence on that front.

Speaking of intense pre-trial preparations, there are six classified filings from Libby in the last two days, so far. He is still attempting to find a CIPA Section 6 (graymail) escape hatch, using (I presume) Jencks material received from the government 12/22, while also complaining about the substitutions offered for the government's classified evidence exhibits, filing a motion for reconsideration with regard to one document (#217) that was part of the Section 6(c) substitution ruling, and asking for clarification of something (classified), from surface appearances.

[freepatriot]

scooter libby was hired by dead eye dick because scooter libby had a mind like a steel trap. scooter is supposed to be one of the smartest people in washington, and is supposedly able to remember the details of several complicated issues and have command of the facts of several complicated isses at his fingertips

and then, all of the sudden, scooter forgets the details of SEVEN CONVERSATIONS, not to mention the NOTES scooter took about some of those conversations, at a very convienient time, while scooter is providing information to FBI agents and a Grand Jury ???

don't sound very likely to me

and i'll bet a Washington DC Jury don't buy scooter's feigned ignorance either

scooter libby's resume says scooter is a liar

the FBI says scooter is a liar

the Grand Jury says scooter is a liar

there isn't a single objective source on the planet that says that it is likely that scooter forgot all of the conversations he had about Valerie Plame

scooter's own "Memory Expert" was laughed out of court

and some of you fools still think it is believable that scooter libby learned about Valerie Plame's identity from a reporter who had NO IDEA that Valerie Plame was a NOC agent ???

face it, scooter libby's claims are not believable on any level

the FBI didn't believe scooter

the Grand Jury didn't believe scooter

Patrick Fitzgerald didn't believe scooter libby

and Judge Walton didn't believe scooter libby

how many people have to tell you that scooter libby is a liar before you begin to believe that scooter is a liar ???

will the informed judgement of 12 good and honest jurors convice you ???

or will you continue to come here and claim that everybody else is wrong, in the face of all evidence ???

there is a clinical term for that condition

cognative dissonance

you could look it up

the war is over, you can get new parts for your head now

[katie Jensen]

Pow wow, I really appreciate your reporting on this subject. You have a great clear concise writing style that is very easy follow and very informative. I have really enjoyed seeing you here and on FDL. Interesting, very interesting. Does that mean that somebody out there is still concerned about a potential conspiracy unveiling?? I am still hoping...that somewhere in this mess the conspiracy is unveiled. I love thinking that perhaps they are getting a might worried the way that only the guilty do. This guilty anxiety often causes the slip ups that pave the way to truth.

[pow wow]

Thanks for the kind words, katie. I'm glad to know that such long comments remain comprehensible. [And as to your question: 'could be'...]

[pdaly]

And unlike Padilla, isn't Libby earning a 6-figure salary somewhere as a "consultant" while awaiting his criminal trial?

[DanM]

The bizarre Ashcroft in Russia presser on Padilla also figures in here, as far as I can tell.

Mainstream pundit types were tripping over themselves to talk about how unimportant perjury (along with the Plame leak generally) was, while there was potentially significant harm done to extremely valuable undercover American personnel abroad. Meanwhile, the Attorney General of the United States holds a press conference in a foreign country to announce that a somewhat misguided young man was arrested for not much of anything a month before.

Our entire justice system operates much the same way, in that young white cocaine addicts, for example, are sent to treatment so that they can clean their lives up from these small missteps, compared to young black men who buy small amounts of marijuana, who get sent to prison. With the stakes so high for the entire country in the Plame case, one would think that we would get over this tendency to excuse what wealthy white people do, but apparently not.

[Walter]

PowWow,

Do you know which (potential) witness received immunity? (It's mentioned in Libby's recent filing) We've been speculating over at JustOneMinute, and seem to be resolving on Fleischer.

There's still hope that it's Cheney, though.

[emptywheel]

Walter

My guess is Ari. Could be Martin or Hadley--not many other people.

[smiley]

pdaly: And unlike Padilla, isn't Libby earning a 6-figure salary somewhere as a "consultant" while awaiting his criminal trial?

Sure, but as soon as he cashes the check, he has to hand the money over to Comstock.

[Rayne]

Hmm. Immunity. Probably not Hadley; probably somebody lower on the totem pole who knew they were at risk for prosecution, who could expose others up stream. But Ari or Martin? still seems weird to me that Ari bailed out when he did, as he did. I'd vote for Ari.

What's that do to the theory Ari is the 1 and/or the 2 in 1x2x6?

[katie Jensen]

Ari has been extremely quiet about all this. So many of these principles have answered questions, been interviewed on the subject, even if they just say "I can't talk about this". Ari has been completely out of the scene. I don't know if that means something but it stands out to me.

[emptywheel]

pow wow

I made the point on my AP WSJ discussion that if they were interested in learning why the investigation continued past Armitage, they would have asked for Novak's subpoena to testify. Why, after he supposedly testified truthfully in October 2003 and twice in January 2004, did Fitz need Novak to go before the grand jury? Why not just accept a deposition, as he had with Russert and several other journalists?

I had a second session with Fitzgerald at Swidler Berlin on Feb. 5, 2004, after which I was subpoenaed to appear before the grand jury. I testified there at the U.S. courthouse in Washington on Feb. 25.

I would submit that that rationale for subpoena would tell AP and WSJ everything they need to know--about why the Novak leak, at least, continued.

[emptywheel]

Rayne

REmember, Ari had submitted his resignation on May 20 or something, so the July 14 departure was almost certainly unrelated to Plame.

As to the 1X2X6 theory, it remains unclear, since Ari is not 1 (the source was described as a current SAO, not a former one). One leak to Pincus doesn't make him 2--particularly since we know Libby leaked to at least two people and Rove leaked to at least two people (so we'd still need 1 to tell us who he was talking about).

[John Casper]

Thanks Mary at 18:00.

OT, wrt Scooter's Wingnut Welfare, it's the Hudson Institute, Hudson Scholars.
Judge "strict constructionist" Bork also picks up his welfare check there. When the executive branch wants to shred the Constitution, it's ok with Bork. Anyone else, they're a wimp trying to legislate from the bench.

[C0]

Ari had a thing for hostels. Plame went to Montreal for some reason just before all this happened. Woolsey was on TV there while she was there.

The theory was she was an upset Peace Corps volunteer and needed some help. Like something bad happened during service. Why the story? Maybe the confusion had something to do with her husband being one.
Maybe she was looking for some sympathy and that was the result. Maybe she didn't like one once and married Joe.

So, what was she doing in Montreal and who tipped her? The thinking is government IP addresses, but most disagree with this theory. She met a guy there who blogged his meeting because he saw what happened to others who worked with her, like I said, the pre-leak clean up the early loose threads first theory gone. Loose ends just aren't there.

The No Fear legislation is up at CIA website. For some reason I think of DEA NOCs or maybe DIA NOCs or something:
EEO Data for No Fear Act

https://www.cia.gov/no_fear_act/no_fear_act.html

[Rayne]

EW 9:36 -- nuts, I should have checked the date on Ari's resignation, had it in my head it was late June and not May.

(But he was there for the Gannon/Guckert debacle!)

Novak did call Fleischer, though; we just don't know if Fleischer spoke with Novak, right? Open to correction, as I have often been wrong and not particularly encyclopedic in my Plamemania.

[emptywheel]

Novak called Fleischer. Fleischer is said to have testified that he did not call Novak back. And, obviously, Novak has left Fleischer completely out of any narrative about learning about the leak.

[pow wow]

Walter - I don't have any particular insight to add about the 1/3 Libby jury instruction response's statement that "...the Jencks material shows that at least one immunized witness will likely testify." It does seems clear that the reference is to a prosecution witness, as Jeff and cboldt point out in the JOM thread you reference. I'll guess that someone invoked their Fifth Amendment right against self-incrimination, and was subsequently offered 'use immunity' once it was determined that the person was a peripheral player at most. In that regard, the hints about Fleischer and email(s)/contact(s) with reporter(s) after his 7/7 lunch with Libby would seem to align, wouldn't they?

Title 18 U.S.C. § 6002 provides use immunity instead of transactional immunity. The difference between transactional and use immunity is that transactional immunity protects the witness from prosecution for the offense or offenses involved, whereas use immunity only protects the witness against the government's use of his or her immunized testimony in a prosecution of the witness -- except in a subsequent prosecution for perjury or giving a false statement. - From the 1997 Criminal Resource Manual 717

EW - The unique thing about Judge Tatel's Opinion and the two Special Counsel affidavits prepared for the District and Circuit Courts, is that they elaborate on and provide a justification for the grand jury subpoenas to Judith Miller and Matthew Cooper. That happened because those two testimony subpoenas were challenged and contested (beyond preliminary resistance), unlike the others issued in the investigation. A privilege that other witnesses didn't receive in this investigation, but that Miller and Cooper received because of their subpoena resistance, was these lengthy justifications from the Special Counsel for calling them to testify in front of a grand jury. Unscrupulous reporters would love to be considered 'special citizens' in that way, and to not need to appear as other citizens do in response to grand jury testimony subpoenas, but so far they have no such rights in federal proceedings. [Although the DOJ guidelines do direct that reporters be treated with kid gloves by government prosecutors, and only called as a last resort. That directive, however, is not legally binding.]

To fully make his case for the testimony of Miller and Cooper, Fitzgerald took the extra step of providing these lengthy justifications, via his sealed affidavits, to give the Court(s) every chance to understand the 'context and perspective' of the grand jury investigation, before the Court(s) ruled on the Miller and Cooper subpoena challenges. Fitzgerald made a point of stating that he did not consider such justifications to be a requirement that the prosecution must comply with before obtaining grand jury testimony from reporters, because of course that would create two tiers of citizenship, in effect, if such a course of action was mandated (although that seems to be one aim of a federal reporter "shield" law in some formulations). Nevertheless, he did in fact prepare lengthy confidential affidavits for the information of the Court with regard to those two proposed witnesses.

Now, after this extra scrutiny of their testimony subpoenas that Miller and Cooper were privileged to receive from three Courts, as informed by the Special Counsel's affidavits, the media (AP and Dow Jones) are attempting to take advantage of that special treatment, by forcing the grand jury secrets contained in those affidavits (and repeated in Tatel's Opinion) out into the open.

Whereas the information contained in the subpoena to Robert Novak would almost certainly be just the standard cut-and-dried request for testimony and documents, without any of the extra accompanying justifications, including citations of grand jury testimony, that were provided (under seal) in the cases of Miller and Cooper. It's the 'forthcoming' (to the Court) actions of the Special Counsel which the AP and Dow Jones are trying to capitalize on. Without that extra information from the Special Counsel to target, their fishing expedition would have to resort to - gasp - all their many (unused) resources for investigative journalism and Libby trial coverage.

[emptywheel]

pow wow

Do we know there was an affadavit relating to Cooper's testimony? We know there was one relating to Pincus' testimony. But I've not seen one relating to Cooper's testimony.

Also, are we sure that Fitz didnt' do a written request for all his journalist subpoenas? Normally, there would be the correspondance between the prosecutor and the attorney general, who, according to DOJ guidelines, would have to approve the subpoena. In this case, Fitz played the function of AG, so he may have written a note in lieu of such correspondance.

And if that's the case, I still say the Novak one is most interesting. Fitz would have to justify the need for GJ testimony, as opposed to just a deposition.

[pow wow]

EW - I'm separating the process Fitzgerald would have followed in accordance with DOJ guidelines to obtain testimony from reporters, from the sealed affidavits he submitted to Court in support of the subpoenas. If you read the descriptions Fitzgerald includes in various filings attesting that he has met (or exceeded) DOJ guidelines for requesting the testimony of reporters, they're straightforward and undetailed with regard to specific grand jury testimony. Yes, he would also have had to do that with regard to Novak's subpoena obviously, but I don't think that that process for either Novak, Cooper, or Miller (or any other reporter) would come remotely close to revealing the sort of information that is contained in the two affidavits at issue in the AP/Dow Jones Motion to Unseal. But if you're right, and more background is included as part of the DOJ process, that remains an internal DOJ record, I would think, perhaps accessible via a FOIA request, but not by a motion in Court.

Yes, I believe there's an affidavit relating primarily to Cooper, which appears to be very much entangled with information relating to Rove's testimony. Thus, Fitzgerald was unable to release more of that affidavit a year ago, when Dow Jones filed their first motion to unseal right after the Libby indictment. [I excerpted in the AP/Dow Jones thread a quote referencing that grand jury secrecy 'entanglement' issue with regard to that affidavit.] However, I haven't gone back and ascertained exactly when each affidavit was first submitted and why, so there may be nuances I'm missing about these affidavits (and there may be more than two, as well).

A grand jury subpoena should cover both deposition and grand jury testimony. Both Pincus and Russert, for example, received subpoenas which they initially resisted, but ended up testifying by way of depositions rather than in front of the grand jury, as I recall. Same with Cooper with regard to his initial Libby testimony. With the DOJ guidelines requiring extra hurdles before any testimony from reporters can be requested, I'd think most of the requests for testimony from reporters were quite formally issued, except where (as with Woodward?) sources cleared the way and reporters weren't resisting giving testimony as a result.

[emptywheel]

But if you're right, and more background is included as part of the DOJ process, that remains an internal DOJ record, I would think, perhaps accessible via a FOIA request, but not by a motion in Court.

Oh, I see your point there.

My point on Pincus is that the affy that Fitz wouldn't reveal more of--the one that includes Miller? That one is almost certainly on Miller and Pincus, not Miller and Cooper (among other reasons why I say this is because it was dated between the time Cooper testified on Libby and received the second subpoena). So if they're looking for more on that affy, it probably doesn't even relate to Cooper (because it's not about Cooper) or Judy (because they've already declassified that bit).

[Comrade O'Brien]

Attention Comrades,
Please visit http://ministryoflove.wordpress.com to learn about our creative protest of the Military Commissions Act.
Regards,
O'Brien